Professor Dershowitz’s Challenge to Justice Scalia
On Monday, the Supreme Court ordered a federal trial judge to take a closer look at the murder case against Troy Anthony Davis, a Georgia death row inmate. The SCOTUS directed the district judge to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis’] innocence.”
Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented. Justice Scalia questioned the viability of Davis’s claim of actual innocence, then went one step further. Even if Davis might be “actually” innocent, he’s SOL:
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.
This bold pronouncement caught the attention of Professor Alan Dershowitz, back at Justice Scalia’s alma mater, Harvard Law School. From “Scalia’s Catholic Betrayal,” over at The Daily Beast:
Let us be clear precisely what [Scalia’s dissent] 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.”It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.
So should Justice Scalia resign? The Dersh isn’t saying that — yet.
But he does have a challenge for Nino.
Professor Dershowitz sets up his argument by summarizing Justice Scalia’s views on Catholic teaching and the death penalty. According to Justice Scalia, as summarized by Professor Dershowitz, because the Catholic Church “counsel[s] against the use of capital punishment but permit[s] this extreme sanction in extraordinary cases, especially when there is no reasonable alternative,” it is morally acceptable for a Catholic jurist to handle death penalty cases (i.e., to “tinker with the machinery of death,” as Justice Blackmun so memorably put it).
But does the Catholic Church’s narrow acceptance of the death penalty permit Justice Scalia’s more aggressive position regarding the execution of the “actually innocent”? Professor Dershowitz doesn’t think so:
[W]hatever 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?
To paraphrase Senator Coburn, it sounds like Justice Scalia has lots of ‘splainin’ to do.
Luckily for AS, the Dersh is willing to give him that opportunity:
I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Justice Scalia is always willing to debate issues involving religious teachings….Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.
I invite him to participate in the debate at Harvard Law School, at Georgetown Law School, or anywhere else of his choosing. The stakes are high, because if he loses—if it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church—then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court.
Hmm…. This bargain sounds a little Faustian. But still, we’d give up at least a kidney, with maybe a little toe thrown in, to attend a Scalia-Dershowitz debate.
We’ve reached out to Justice Scalia for comment on Professor Dershowitz’s challenge. If we hear back from him — it wouldn’t be the first time — we will let you know.
Scalia’s Catholic Betrayal [The Daily Beast]
Hearing on innocence claim ordered [SCOTUSblog]
(129) Comments
Comments
BLAH!
PODIUM!
First to say: who gives a shit. Where the hell are the army of offer / interview / callback stories warranted by ITE?
I hope it is in DC so I can watch it.
PE just got denied for a Chase credit card.
he funny looking
The constitution is not a code. douche-owitz.
& WTF does being catholic have to do with the constitution.
the Dersh- haha. Nice nickname.
5 - i heard it was a discover card!
Guys in my high school used to execute actually innocent though duly convicted murderers all the time. It was no big deal.
Since when have morality or common sense played any part in Scalia or Thomas's opinions?
Originalism and textualism is an evil, satanic doctrine. As evidenced by Scalia's dissent in this case. Scalia is only following his own conservative teachings.
Poor evidence that Scalia is a fucking hack.
I dont think thats what Scalia was actually saying.
I think what he is implying is that if a defendant has a fair trial and is found guilty, just because he can convince a habeas court that he isn't doesn't necessarily mean he can avoid punishment.
Scalia isn't going to the logical extreme of someone with an alive wife showing up, he's saying that in a case where much of the evidence is the same, if a jury found someone guilty after a full and fair trial, the judiciary shouldn't usurp their judgement.
If we wanted judges to decide questions of guilt and innocence, we wouldnt have juries. Allowing a judge to overrule a jury's verdict simply because he thinks otherwise wouldn't be constitutional.
Flip it around. Is it so bizarre if he had said "this court has never held that a defendant has a right to freedom after a full and fair trial when the prosecutor can convince an appellate court of his guilt"?
For Thomas- he saw a black man-and well, you know, his own degree in Yale was "devalued" because he was black, so every black defendant who appears before him must be guilty. Now a black woman, that is a different matter, she's just ripe for harassment.
Scalia has cojones, unfortunately it just leads him to rationalize every act of his. Its been a while since he entered a profession that seeks justice for people. All he repeats to himself every night before he sleeps-plain text of the constitution, plain text....f...g d....bag.
Give me the wise latina with empathy any day over idiots who can read english texts, but have long forgotten the spelling of the word justice.
7: Why don't you ask that question of Scalia himself:
"Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court."
If he dies...he dies
-Justice Ivan Drago
11 - 13 = fucking morons.
The Dersh sets up quite a straw man.
15, I'm sure you'll be full of empathy when your work-related-test-based job promotion is invalidated because too many blacks didn't study and failed the test. It's not racial discrimination if everyone loses the chance at the promotion, even if that 'everyone' just so happens to be whites and Hispanics and no blacks, right?
Dersh is of course missing the point of Scalia's dissent. If the murder victim were in fact alive, that would "clearly" be "new and indisputable evidence". However, the evidence before the Court wasn't "new" in the sense that it had already been reviewed by a number of lower courts, sentencing panels, pardon boards, etc. Nor was the evidence "indisputable", otherwise one of these lower bodies would have been persuaded by it, which they were not.
All Scalia is saying is that he doesn't think that judges have this power; this is a power that should reside in Congress through the habeas statute. If Congress chooses to do so, it can amend the habeas statute to allow a judge to set aside a conviction based on evidence of actual evidence. Congress, however, hasn't done so and Scalia and Thomas just make the point that they don't think judges have the power to do so under Art III. This is not an invalid argument.
The Scalia-haters really need to get over themselves.
I'm not sure what being Catholic has to do with anything.
Scalia isn't saying that a factually innocent person SHOULD get the death penalty. He is simply saying that, as a matter of constitutional law, "actual innocence" isn't a defense after a full and fair trial and appeal of right.
The reason that is the case is due to finality. Most of the time, it won't be a live wife in court- it will be a snitch claiming they did it, or a witness recanting. It would be impossible to sort through.
As for the Catholic thing, Scalia, I assume, would not support executing a clearly innocent man. He would just say that, at that point, it is up to the executive (governer, or President) to pardon him. So it is a moot point.
Dershowitz, worry about your awful hair.
Dershowitz should have been born into my family. Look how good my hair looks. To say nothing of my brother's great hair.
love baby animal!
19- That was the Supreme Court based law when Sotomator heard the case. The SC changed the law (thanks to the constitution of the bench) after she heard the case.
Not 15
Dershowitz is an idiot. While I don't agree with Scalia, that is not what he was saying. 20, has is right. Moreover, if the crime is murder and there has been no murder, there has been no crime.
14, the problem is that Scalia is UNABLE to make that distinction on the facts before him. Sure, he might INTEND that something blatant like a living murder victim would be grounds for a full pardon -- but that is not what his dissent SAYS. Had his dissent been made law, and a habeas proceeding had arisen in which a man brought his dead wife to court to prove his innocence, Scalia's opinion WOULD stand for the proposition that there is some point (aside from death) at which a convicted murderer cannot possibly be pardoned by the court system. Even if this is a case of a hard case making bad law, Scalia has still violated what he professes to be his own religious beliefs.
I have a hard time accepting that the Founding Fathers believed that the system of government they were setting up allowed for the execution of an actually innocent man in order to promote finality. That seems to fly in the face of the contemporaneous writings of the Founding Fathers regarding justice and the writings of the philosophers that were the underpinnings for our system of government.
25, no it was not. If the City instead scrapped the test because too many blacks passed it, that would have been constitutional under "the Supreme Court-based law"? If the action is not racist then it doesn't matter which races were affected.
I don't think so.
15/22:
Don't bother; people are too busy getting their hate on regarding Scalia.
Dersh might as well be making black jokes at a klan rally or bashing Bush on J. Stewart's show. No matter how stupid the act, that sort of crowd will laugh and howl and tell him he is killing the room with his wit.
20 - An alive wife showing up in court isn't necessarily "new and indisputable evidence." A court could find that the alive wife was discoverable at the time of trial and therefore not "new" evidence. Because the evidence was discoverable, under Scalia's dissent, an indisputably innocent man would be executed in the interest of finality.
3: A lot of people give a shit. This is important stuff. I could give a flying f. about your callback interview at some shitty firm that's not going to give you an offer because you're socially retarded.
I hate Scalia as much as the next guy, but he is right on this one.
@28: I have a hard time accepting that the Founding Fathers believed that the system of government they were setting up would countenance collateral attacks on final state court convictions in the new federal courts they were establishing with the first Judiciary Act. Federal collateral review of state court criminal judgments wasn't authorized until after the Civil War.
And Dershowitz's hypothetical example is ludicrous. In a case in which the murder victim could be shown conclusively to be alive, it is inconceivable that any prosecutor's office would contest the defendant's release from prison and it is equally inconceivable that any governor/pardon board wouldn't sign an order effectuating the defendant's immediate release.
20 - sorry, but are you even remotely familiar with habeas law or this case?
Troy Davis's evidence was "new" in that it came out after his trial. And none of the federal courts (district + 11th) actually considered the substance of the evidence b/c all of them punted his case on procedural grounds.
Now the SC orders the district court to actually examine the newly discovered evidence, for the first time.
Lastly, your "indisputable" argument is circular. It's like me calling you retarded and answering "because you are" when you ask why.
Could someone please enlighten me as to the purpose of a habeous corpus court if it NOT to make some determination related to whether the punishment is appropriate?
Obviously if the defendant is proven not-guilty to the court,any punishment would be inappopriate.
Conservative nut/Scalia defenders #20-23 would have us believe that, according to Scalia, a habeous corpus court serves no purpose at all. I disagree because even Scalia can't be that stupid.
20-23, do you guys believe in evolution? I ask because most conservatives don't. . .
16- Wow you really did your homework on that quote- I'm sure 7 never saw it coming- keep throwing fresh information our way.
Folks,
I need some advice re a family situation. My ninety-three year old grandfather is low on funds and has terminal brain cancer. He is expected to live no more than six months.
His self-esteem is slipping and he feels that he is losing his looks. He would like to get a face lift and some botox treatments. Do you know if this "emotionally necessary" medical care will stil be publicly funded and available under Obamacare?
Dershowitz is just being an ass. In his example, if the murder victim turned up alive, there wouldn't be that much difficulty in getting relief through the state court or pardon process. It's laughable that Dershowitz think it's for him to judge how faithful others are to their religion. And Elie just uncritically regurgitates Dershowitz.
36--
It is statistically true that most conservatives do not believe in evolution. But keeping intellectual company with the clearly stupid does not, per se, mean that you yourself are stupid (wink, wink)
31, did the state supreme court and pardon board already reject the claim that the wife is alive, maybe because the defendant actually just got some other woman to dress up and pretend to be his wife?
I am more disturbed by Scalia's ridiculous torturing of Catholicism to suit his own ends with respect to the death penalty. His reading of the doctrine is entirely self-serving and ignores the Vatican's stance against the death penalty.
Does Dershowitz have Alzheimer's or something? That is one of the most ridiculous arguments I have ever read.
34, what you find "inconceivable" isn't really relevant to the discussion. I find it inconceivable that a prosecutor could fabircate evidence in order to obtain a conviction, yet they do. I find it inconceivable that people would not believe in evolution, yet some don't.
39's opinion of what "wouldn't be difficult" is similarly irrelevant. As pointed out above, several courts refused to consider new evidence in this case , even though one would think it "woulnd't be difficult" to get a court to consider evidence of of a death row inmate's actual innocence.
@36. The purpose of a "habeas corpus court" depends on what kind of habeas corpus you're talking about. Traditionally, the purpose of habeas corpus was to make sure that the King (in the United States, the President or a state) isn't holding people in custody indefinitely without charging them with a crime, putting them on trial, and allowing the accused to defend himself and, if acquitted, to go home.
Under the modern habeas corpus statute, another purpose of habeas corpus review is to determine whether the prisoner's conviction was obtained in violation of the Constitution. A problem -- and it's a big one -- is that many, many, many prisoners claim to be actually innocent or that they wouldn't be in prison if their constitutional rights weren't violated. In virtually every case, the evidence that supposedly shows that the prisoner was "actually innocent" does no such thing, e.g., it shows that one of the prisoner's coconspirators may have been the triggerman.
And here goes 19, the village racist, railing against the racial injustice suffered by white men the world over. Riddle me this 19: when was the last time that you were outraged (and expressed it to someone other than yourself) by something racist or sexist that you experienced on your way to a Klan rally?
Or do you only see examples of so-called "reverse racism?"
23 is not a peer commenter
37: 16 here. You're right - I took it directly from the Dershowitz article to show that Scalia HIMSELF sees his Catholicism as related to his role as a S.C. Justice. If 7 had read the article, he or she wouldn't have asked such a ridiculous question.
@44:
34, what you find "inconceivable" isn't really relevant to the discussion. I find it inconceivable that a prosecutor could fabircate evidence in order to obtain a conviction, yet they do.
Examples of when prosecutors fabricated evidence to obtain the conviction of an actually innocent defendant, please?
who cares- this is a dissent. you can say anything you want in a dissent
there's plenty of stuff to hang scalia on, but this ain't it
46, I agree, 19 is the village racist for believing that people should not be judged by the color of their skin but by the content of their character.
49- HAHAHAHAHAHA.
You must be a troll, i refuse to believe you're a real human being that's actually that stupid.
-not 34
Hey guys, I am not wearing pants.
David Mystal
The Catholic dig at the end was completely uncalled for. A justice should put aside their personal beliefs to do their jobs. That is why the wise Latina is such a poor choice.
The law doesn't make mistakes.
-Judge Dredd
first to say--Scalia supports Death Panels (in the interest of finality of course)
49 couldn't be more naive. Or are you trying to be an insufferable douchebag?
- Not 34
Scalia has come to Dershowitz's class to debate him before. After a challenge from a law student on Dershowitz's behalf (unbeknownst to Dershowitz) in Fall of 1993, he came to debate an issue of criminal law before the class.
@49:
http://www.law.com/jsp/article.jsp?id=1202433151691
Clowns. All of you.
Dershowitz is taking an intellectually dishonest interpretation of Scalia's dissent - note that Scalia placed "actually" in quotation marks.
That having been said, I'm no Scalia apoligist - the guy is a fucking hack. And I am continually amazed that any intelligent person would profess to believe in Catholicism, or in any other major religion for that matter. I didn't even buy into that shit when I was 7.
40 - What a yawntastically, uninformed, non-germane post. Now sit down, shut up and do the doc review like a good little sheeple.
49- i'll amend to "i find it inconceivable that a prosecutor could conceal or destroy evidence of a defendant's actual innocence, but they do."
http://findarticles.com/p/articles/mi_qn4200/is_20070604/ai_n19202425/
-44, who stands by his initial point that 34's incredulity is irrelevant.
http://www.truthinjustice.org/John-Thompson.htm
Who took a dump on Dersh's head or is that his hair?
35, FTW!!!!!
And from this morning's docket:
http://reason.com/news/show/135474.html
If the person's wife showed up as Dershowitz posits, the case would never get to the Supreme Court. State courts woudl set aside the conviction. what makes Dershowitz think that state courts are any less capable of doing that then federal courts?
Plus, there is executive clemency.
Ultimately, this is a disagreement as to the factual determinations. I have no idea why federal courts, in habeas proceedings, are better positioned to make them then state courts.
Dershowitz is improperly twisting what Scalia said in his dissent:
Scalia would not tell that hypothetical wife "killer" that he is shit out of luck. The dissent rests on the fact that 2254(d)(1) prevents a federal habeas court from granting relief on the merits when a state court has already adjudicated the claim UNLESS the state court's decision involved an unreasonable application of Federal law OR was based on an unreasonable determination of the facts.
It is impossible for the Supreme Court to say that the Georgia courts unreasonably applied Federal law when no federal court has ever held that it is unconstitutional to execute a convicted prisoner who has convinced a habeas court of his innocence. That is Scalia's point - AEDPA ties his hands. However, in the wife-killer hypo, the Court could easily say that the Georgia Supreme Court's decision was based on an unreasonable determination of the facts. After all, if the wife is alive and is there in court, it is impossible for a judge to reasonably conclude that she was murdered.
There... you have just been schooled by a judicial clerk... Dersh is a hack.
Dershowitz is a goof. Scalia may be wrong, but not because he is a"practicing Catholic, bound by the teaching of [the] church, to do moral justice." On the contrary, he is a Justice of the United States Supreme Court bound by his oath of office to uphold the Constitution.
The implications of Dershowitz's argument are frightening, and transparently hypocritical. He would never argue that its ok for Scalia to vote to overturn Roe/Casey simply because he's a Catholic, and therefore bound to do so by some higher law. No, in that case, he'd say they should put their Catholicism aside and follow stare decisis.
69 is retarded. It is still a question of "law" if the issue for the SCOTUS is "if it is unconstitutional to execute a convicted prisoner who has convinced a habeas court of his innocence [by presenting his living wife]"... The law/fact distinction is a red herring in this scenario. Get back to clerking, bitch.
This is so endlessly stupid. A fifth grader could select numerous quotes from Google from Scalia about how he is bound by the Constitution and not his faith or ideals.
@49:
MEXICO CITY, Aug 12 (Reuters) - Mexico on Wednesday freed 20 prisoners jailed for more than a decade in connection with a massacre of dozens of indigenous villagers in a case that has become emblematic of failings of the Mexican justice system.
Their release came after the nation's Supreme Court determined that the prisoners had been convicted in unfair trials of taking part in the 1997 killings in southern Mexico, with prosecutors fabricating evidence.
@49:
MEXICO CITY, Aug 12 (Reuters) - Mexico on Wednesday freed 20 prisoners jailed for more than a decade in connection with a massacre of dozens of indigenous villagers in a case that has become emblematic of failings of the Mexican justice system.
Their release came after the nation's Supreme Court determined that the prisoners had been convicted in unfair trials of taking part in the 1997 killings in southern Mexico, with prosecutors fabricating evidence.
Does this mean, at least, that since his wife is "dead" in the eyes of the law (even though she walked into court as exhibit a to his SCOTUS apeal, that the poor slob does not have to pay spousal support unil he gets the needle?
@52: That's a great argument. With analytical skills like those, you must be a very good lawyer.
@59: The Brocade trial is not even close to a case in which the prosecutors fabricated evidence to obtain the conviction of an actually innocent defendant. The prosecutors were found to have committed misconduct, and the defendant was held entitled to a new trial, but that does not remotely establish that the defendant was actually innocent.
44/63: The article regarding John Thompson appears to be significantly closer to the mark -- especially given the way you've amended your statement. Thank you. The article regarding John Thompson is obviously disturbing. But although the article clearly seems to suggest an extremely serious (and likely intentional) incident of professional misconduct for failing to turn over the evidence (a Brady violation), the article doesn't make out nearly enough to conclude that it's a case in which the defendant was actually innocent. The article says that the prosecutor admitted to concealing "blood evidence that could possibly prove Thompson's innocence." What that blood evidence was, how it could have proved Thompson's actual innocence, and whether it actually did so, the article doesn't say. Having read the article, I'm no closer to havng any idea whether he is or isn't.
@67: Also not a case in which the prosecutor fabricated evidence in order to convict an actually innocent defendant or a case in which it's clear that the defendant was actually innocent, although assuming the accuracy and completeness of this article (which I have some doubts about), it is bad that the allegation against the stepfather wasn't disclosed to the defense, whether or not the prosecutor was personally aware of it. (The article doesn't mention whether the allegation against the stepfather was ever substantiated. It also doesn't seem to mention whether the stepfather had gonorrhea, although the article seemed to be leading up to that conclusion.)
-49
49/76 - you have too much time on your hands. Just saying.
To take the argument one step further, can he lawfully conspire to kill her at this point on the theory that she is already (legally) dead?
Or, if he strangled her during a contact visit to death row, could he plead once-in-jeopardy?
Is it really true that Thomas, J. vacations in his motor home and saves money by parking in Wal-Mart parking lots?
Come-on, David, dish us up some SCOTUS dirt.
Did it really take this opinion to establish what a fucking dipshit Scalia has become? Please, don't even get started on the general retardation of the Catholic Church. Scalia is hitting a grand slam!
@73/74 - Perhaps I should amend to "prosecutors in the United States."
In any event, the article you quote -- or at least the portion quoted above -- doesn't make it possible to know (a) what evidence the prosecutors "fabricated," (b) what the basis of the court's finding was, (c) whether the reporter's characterization is accurate or whether the reporter or the AP editor, like a couple of the posters above did, sloppily conflated improper arguments or other misconduct with the fabrication of evidence, (d) what is meant by "the prosecutors." (The last point isn't as picky as it may sound: I don't know whether Mexico's system is similar to ours in terms of who the prosecutors are and what their role is supposed to be, or if Mexico is closer to civil-law countries, like Spain.)
And the article doesn't suggest that the defendants were actually innocent, just that they were convicted after unfair trials. Which may well be the case, whether or not they were actually innocent.
Again, though, perhaps I should amend to "prosecutors in the United States." It was fair for 44/63 to amend "fabricate" to "fabricate or conceal/fail to disclose."
- 49
Troy Davis was convicted and sentenced by a jury of his peers. The "real culprit" according to critics today was a man who voluntarily answered police questions without a lawyer at the time- all while Troy was fleeing the city. Maybe he is innocent maybe he is not but to say he is "clearly innocent" is wrong- unless you are his attorney advocating on his behalf or you happened to be there when Mark was murdered.
Yes, Scalia will definately win this one. The Catholic Church's finest historical moments have involved mass murdering the innocent. Certainly they can justify killing this guy.
Did anyone actually read the dissent? Scalia is merely saying that he doesn't understand why the case was remanded to a district court that has no power under 2254 and SCOTUS precedent to do anything about it. His point was that if the justices want the district court to do anything, then they, SCOTUS, not the district court needs to adddress the 2254 questions. Sheesh.
I don't think the Catholic Church cares if this innocent dude gets put to death. After all, they can just make him a saint in a couple hundred years and then everything will be good.
I think Doucheawitz should be ignored. He is always making these crazy half-baked claims and shooting off his mouth. Kind of reminds me of Scalia a little.
Oh please...Dershowitz is intentionally misreading Scalia. Scalia is not saying that an actually innocent defendant has no rights...hence the quotes around "actually." He's saying he doesn't trust every Tom, Dick, and Harry district court judge to determine actual innocence on habeas, that habeas judges shouldn't be supplanting their judgment for that of state courts. No one questions that innocent defendants should be freed, but is habeas the correct method for doing that, especially since its original use was simply to force the state to try someone it was holding and refused to bring to court? (In other words, habeas had precisely no role after a defendant had been tried.)
49: Jesus H. Christ, how many instances of police and prosecutor misconduct do you want? Are you that naive?
See http://www.truthinjustice.org/p-pmisconduct.htm
http://en.wikipedia.org/wiki/Rolando_Cruz_case
http://en.wikipedia.org/wiki/Tulia,_Texas
http://en.wikipedia.org/wiki/New_York_State_Police_Troop_C_scandal
Denzel Washington won an Oscar in "Training Day" for his loose portrayal of former LA Rampart officer Rafael Perez, who fabricated evidence in connection with the arrests of dozens of suspects. Perez implicated another 70 LAPD officers, and over 100 convictions were overturned because of his misconduct.
http://en.wikipedia.org/wiki/Rampart_scandal
Police and prosecutors routinely abuse the judicial system.
I challenge Dershowitz to a debate on whether Jewish doctrine permits Israel's apartheid policy.
62 -
That one hit home, didn't it? Is that because you believe that the Lord Jesus Christ created the earth in 7 days and all of the fossil facts were "tricks" placed to "test our faith?"
Or is it because you know people who don't believe in evolution are morons and it hurts you to think they are your intellectual equal?
Do tell
49/80...perhaps i should have amended my statement to "i find it inconceivable that it was my parents, and not the tooth fairy, who left money under my pillow when i lost a tooth as a child, but they did."
either way, this conversation is beside the main point of the original comment, which was about the irrelevance of another commenter's incredulity. prosecutorial misconduct does occur, and if you don't think that that has at some point included fabricating evidence, well, then, OK.
(as it turns out, Thompson was in fact innocent. the likely killer was the prosecution's star witness, who had cut a deal in exchange for his testimony against Thompson.)
-44/63
88 = antisemite
27 - nailed it. The statement "[t]his 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" makes no distinction regarding the type of evidence a convicted defendant might present to a habeas court to prove "actual innocence."
49/76 really needs to stop.
91 = antisemite
94 = moron, 88 still = antisemite.
94/95 = racists.
Hey look, Justice Thomas agrees with Scalia on this one.
When did Larry become a lawyer, and what happend to Moe and Curly?
is preying on female law students by endowed faculty a misdemeanor, a capital offense, or something condoned or encouraged by the faculty of top 3 law schools?
71 - wow, you sure are a stupid 1L. Scalia acknowledges that the constitutional issue still remains... he brings it up in his dissent and even puts an asterisk next to it for stupid assholes like you. But if you could read, you'd know that this was a HABEAS issue... let me repeat that for you. HABEAS.
Fuck... you are so stupid.
@87: You are answering a question that is considerably broader than the one I asked.
I am well aware of the very serious police scandals you referred to (and I even saw Training Day), but I'm still not certain how you get from there to "prosecutors routinely abuse the judicial system." (And forgive me if I don't consider truthinjustice.org to be a fair and unbiased source of factual information.)
-49
36 writes: "Could someone please enlighten me as to the purpose of a habeous corpus court if it NOT to make some determination related to whether the punishment is appropriate?"
2254 habeas provides relief to a person in state custody when a state court conviction was obtained in violation of, or an unreasonable application of, clearly established federal law as interpreted by the United States Supreme Court. 2254 does not permit federal relief on the question you suggest, "whether the punishment was appropriate." If you think it should, feel free to write your congressional representative and suggest the change. I'm sure he or she will get right on that.
Right.
Whenever I have a question about Catholic dogma, the first name that comes to mind is Alan Dershowitz. That lapsed orthodox Jew is like the pope when it comes to Christian theology.
@69 I'm not sure AEDPA applies to the original Writ. I seem to recall a Supreme Court case out there somewhere where they construed AEDPA as not affecting the Supreme Court's jurisdiction to grant original Writs in order to avoid constitutional questions as to whether AEDPA violated the Suspension Clause.
But this is based on my hazy memory of habeas law/FedJur, and I am not interested enough to read Scalia's dissent.
Do a google search and you will see plenty of cases where the state opposed post-conviction DNA evidence. You will also see a number of cases where police and prosecutors have committed misconduct to obtain convictions.
And does it matter whether the evidence proves "actual" innocent or just raises reasonable doubt when we are talking about life sentences and the death penalty? Sure we want to encourage finality, but not at the expense of someone's life or freedom. Scalia should know he is on the wrong side of this one when the only justice standing with him is Thomas.
69-
I think you are missing a key part: fo SC to step in the lower court must reach an unreasonable determination based on the facts available to it at that time. This is a tougher standard so D's point would still stand.
I think you are missing a key point: for SC (or a DC) to step in the state court must reach an unreasonable determination based on the facts available to it at that time. This is a tougher standard than the one you imply so D's point would still stand based on this provision.
I'm not siding with Scalia, but who the f*** cares what Douchawitz has to say?
I second 88's challenge.
This is pretty weird of Dersh, honestly. Scalia and Thomas are saying that there is no Constitutional bar to such an execution, not that such an action would be morally defensible. Basically this is a question of whether or not a federal judge gets the last word on granting a new trial. Scalia says no. It does not reach the question of whether a new trial should actually have been granted. The man and his wife in Dersh's example could still appeal to the state.
@ 105: "Do a google search and you will see plenty of cases where the state opposed post-conviction DNA evidence."
States often "oppose[] post-conviction DNA evidence" because they have good reason to contend that it wouldn't begin to prove the defendant innocent. Moreover, the federal government and almost every state has a post-conviction DNA testing statute. There are a few catches, though: there are usually real penalties if the defendant insists he's actually innocent but the DNA testing then proves that he's been jerking the prosecution's, court's, and society's chain, i.e., the prisoner loses his good time credits and stands to be prosecuted for perjury. (These are only meaningful deterrents, though, in cases in which the defendant isn't already serving a life sentence or under a death sentence.)
"You will also see a number of cases where police and prosecutors have committed misconduct to obtain convictions."
Is the point that we should just assume it happens in every case or most cases and just grant new trials accordingly?
"And does it matter whether the evidence proves 'actual' innocent or just raises reasonable doubt when we are talking about life sentences and the death penalty? Sure we want to encourage finality, but not at the expense of someone's life or freedom. Scalia should know he is on the wrong side of this one when the only justice standing with him is Thomas."
The death penalty makes things a lot more complicated, but if we're talking about life prison sentences (or simply long prison sentences), then yes -- we should be talking about actual innocence. You're presumed innocent at trial; then you have an appeal; then you have state postconviction remedies; then you have federal habeas. At trial, a reasonable doubt will do. After trial, a good defense lawyer can always hypothesize some way that the outcome of the trial might have been different, i.e., other witnesses should have been called to testify, the defendant should have testified (or should not have testified). If, even after trial and appeal, you can easily get released or get a new trial simply by hypothesizing some way where the outcome of the trial might have been different, you'll have a system where you have do-overs until the defendant eventually gets acquitted or the prosecution can't continue to reprosecute (witnesses won't keep coming back to testify, not enough resources). You will have a lot of very guilty and dangerous people walking around, then.
I'm confused. What is so interesting about a Supreme Court justice being a complete fucking moron?
Does the pope wear a funny hat?
<----- loves Baby Animal!
Maybe Scalia's point is that questions of post-trial, post-appeal, post-habeas innocence such as this are better reserved for clemency proceedings.
Dersh's understanding of Scalia's argument is why the LSAT is an important tool. The average student who scored a 165 could confidently tell you the misrepresentation that goes on here.
A habeas court finding of innocence, isn't proof of innocence. Saying such a court finding is not sufficient in and out itself, is not saying that, coupled with other extrinsic evidence, such a finding would not be acceptable to Scalia or Thomas. How do these learned professors conflate this logic? It's not advanced stuff.
Poster on #14 is correct. Jesus Christ this country is retarded. I'm a liberal and even with my pink-colored glasses on I could spot the logical fallacy from 100 yards.
An extremely interesting post and unusually interesting and thoughtful comments. As a lawyer who is Catholic and has issues with both Justice Scalia and Professor Dershowitz, a post like this is particularly interesting.
Unfortunately, I think that under existing jurisprudence, Justice Scalia is correct. To paraphrase another justice/former justice from a speech, there are many stupid things that are still constitutional (including, according to some, outsourcing torture through extraordinary rendition...). If someone is given a fair trial and convicted, factual innocence does not make that conviction and punishment unconstitutional. It makes it horribly, grievously, wrong, immoral, etc. but not unconstitutional.
I do think that in the situation of absurdly obvious proof of factual innocence (which does not seem to be the case here, it's more arguable, not as clear as the deceased person showing up alive!) that a court should hold that ANY punishment (not just execution, but any fine/imprisonment/whatever) would be "cruel and unusual" and thus unconstitutional, but that would probably be too obvious and make too much sense...
In other contexts, as a society we permit sanctions against factually "innocent" people. If you have notice but fail to challenge a default civil judgment in time, find out years later you're not the biological father to a child, in the criminal context fail to use evidence that was reasonably available at time of trial that (even if not proving innocence) would almost certainly have resulted in a not guilty verdict, tough. Have a sleeping professionally negligent lawyer and you still are deemed to have effective representation, etc. Allowing for execution of the factually innocent is different only in degree, not in kind.
117 quick addition, I'm surprised no-one (unless I missed it) pointed out that slavery was entirely constitutional - though almost any American today (I hope!) would agree slavery (enslaving the innocent, at least, not as punishment for criminal acts, which is still permitted constitutionally) is and was a horrible moral wrong.
68 & 115: Isn't there something wrong with the system of checks and balances, when the judicial branch can defer, without review, to the executive branch the commution of a death sentence, where the defendant may be factually innocent, and would have been found innocent, but for the misconduct of members of the executive branch?
114 = Roxie
test
49/101: I was in law school in Chicago during the Ronaldo Cruz scandal and it was apparent that the prosecutors had engaged in misconduct concerning his prosecution, withholding evidence known by them to be exculpatory, a circumstance which resulted in their indictments. Cruz spent several years on death row for a crime another person admitted to following Cruz' conviction. Prosecutors were aware of the admission, but chose to push for Cruz's conviction in a retrial, burying evidence of the actual killer's guilt. An deputy sheriff and an assistant state's attorney resigned rather than participate. Cruz' eventual exoneration led to a moratorium on the death penalty in the State of Illinois.
You purport to rebut opposing arguments by stating that you originally requested examples of prosecutors "fabricating" evidence rather than concealing it. Frankly, that's a distinction without a difference. First, both are illegal and the former requires the complicity of prosecutors once they become aware of it. Second, knowingly suborning perjury is fabricating evidence. See, e.g., Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000) (characterizing allegations of illiciting false testimony as fabricating evidence).
I find your lack of candor disgusting sir. You as an attorney no perfectly well what Justice Scalia was saying. In this Country and appeal has never been allowed simply by proclaiming innocence. This does not mean there are not other avenues for appeal suck as arguing an error was committed by the trial court. What is left out of your left-wing work of fiction is this man not only had his day in court but filed several appeals which were denied. Additionally if this gentleman really were falsely convicted he could seeks pardon but that fact is the total evidence against him proves he is guilty
"The move was especially troubling, Justice Scalia wrote, because “every judicial and executive body that has examined petitioner’s stale claim of innocence has been unpersuaded.”
In April, for instance, a divided three-judge panel of the federal appeals court in Atlanta refused to allow Mr. Davis to file a habeas corpus petition under the Antiterrorism and Effective Death Penalty Act, a 1996 law that limits death penalty appeals.
“We cannot honestly say,” the majority said in an unsigned opinion, “that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder” in light of all of the currently available evidence."
I find your lack of candor disgusting sir. You as an attorney no perfectly well what Justice Scalia was saying. In this Country and appeal has never been allowed simply by proclaiming innocence. This does not mean there are not other avenues for appeal such as arguing an error was committed by the trial court. What is left out of your left-wing work of fiction is this man not only had his day in court but filed several appeals which were denied. Additionally if this gentleman really were falsely convicted he could seeks pardon but that fact is the total evidence against him proves he is guilty
"The move was especially troubling, Justice Scalia wrote, because “every judicial and executive body that has examined petitioner’s stale claim of innocence has been unpersuaded.”
In April, for instance, a divided three-judge panel of the federal appeals court in Atlanta refused to allow Mr. Davis to file a habeas corpus petition under the Antiterrorism and Effective Death Penalty Act, a 1996 law that limits death penalty appeals.
“We cannot honestly say,” the majority said in an unsigned opinion, “that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder” in light of all of the currently available evidence."
Scalia is a supreme douchebag. It's a good thing he's catholic. He can ask for forgiveness, do a bit of time in limbo, and then ultimately make his way into heaven. In any other religion, he would burn in hell for eternity.
what a pile of horsehockey! Dershowitz is....so off the mark...AS USUAL. Neither Scalia nor Thomas' comments are of any value BUT worse, the HYPOCRITICAL Dersh would have been shouting epithets from the rooftop of Harvard had ANYONE criticized or challenged a Jewish judge for having faulty Jewish thinking...he'd be calling them antisemitic or a self hating 'something or other' -- till he plutzed --but A.D. is SUCH a hypocrite--he is not capable of truth telling, he cannot STAND the Truth.... nor can he hear himself in the echo chamber. He is merely another supercilious jackass with a "hahvahd' chair... That's what you get for accepting the non critical thinking of a plagiarist.. What CHUTZPAH! Norm F was right on all counts.
Scalia was merely proving that there are not four degrees but instead five degrees of mental retardation.
In other words while most psychologists say there are four degrees of mental retardation, and with the lowest and most extreme level according to the psychologists being people with IQ's of about 20, I have long felt there is a fifth and much more extreme level of mental retardation, in other words people with IQ's drastically lower than 20. And as proof of my assertion that there are people with IQ's drastically lower than 20, just look at many of the statements issued by lawyers, judges, and a high percentage of the people working for government agencies.
It seems to me that if a D was convicted in a fair trial, and then new evidence was presented, the D's recourse would be to petition the state court to hold a new trial. If the evidence was so clear that the D was innocent and the state courts, or any court for that matter, denied the D a new trial, then the D was not afforded a fair trial. Scalia's argument works and the SCOTUS would grant habeas.
Now, if the lower court did grant a new trial and the court simply ignored the evidence, the D did not receive a fair trail. Scalia's argument works and the SCOTUS would grant habeas. The point here is that you should not be arguing innocense to the SCOTUS, you should be arguing that you had an unfair trial and that even though you proved your innocence at trial, here you are on death row.
Dersh is a moron. So is the judicial clerk who claims to have schooled us all.
Notwithstanding Professor Dershowitz' clever framing, this is not of course a question of Catholic thought. There is no legal system in which one can freely and knowingly execute the innocent, and the terms "guilty" and "innocent" cannot be divorced from their customary meaning or hijacked by a strange, legalistic one. The issue in this case hinges on the term "actually innocent." Justice Scalia obviously questions the probity of the Habeas ruling, and more broadly questions the practice of venue-shopping for a sympathetic judge who will step in to arrest the execution of an order handed douwn by another court.
It is a fact that the number of hearing and appeals and legal shenanigans that attach themselves to every decision in a death penalty case is a scandal that brings the law itself into disrepute. I think Justice Scalia is inclined to agree with this.