Scalia and Killing the Innocent

Tuesday I started to see stuff like this tweet "Supreme Court Justices Scalia and Thomas are heartless, and indifferent to actual justice" and this Think Progress article: Scalia says there’s nothing unconstitutional about executing the innocent.. Most quote this paragraph from Scalia's dissent:

“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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Alan Dershowitz calls this Scalia's Catholic Betrayal. "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 what's going on here? The first big article on the matter was Adam Liptak in the New York Times, Supreme Court Orders New Look at Death Row Case.

"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."

Of course it's SCOTUSBlog that has the best article Hearing on innocence claim ordered, that describes the actual legal issues and links to all the supporting documents. If you're going to read just one article, read that one.

Here's the newsworthiness of the matter: "The Court’s action set off a sharply-worded exchange — Justice Stevens on one side [3 pages], Justice Scalia on the other [6 pages]— over the strength of Davis’ claim to be innocent, and over whether the Georgia federal judge who will be conducting the new reiew has any power to rule for Davis."

Scalia claims a few things. First, there's an order to how appeals work. Supreme Court rule 20.4(a) says:

"A petition seeking a writ of habeas corpus shall comply with the requirements of 28 U. S. C. §§ 2241 and 2242, and in particular with the provision in the last paragraph of § 2242, which requires a statement of the “reasons for not making application to the district court of the district in which the applicant is held. ” If the relief sought is from the judgment of a state court, the petition shall set out specifically how and where the petitioner has exhausted available remedies in the state courts or otherwise comes within the provisions of 28 U. S. C. § 2254 (b). To justify the granting of a writ of habeas corpus, the petitioner must show that exceptional circumstances warrant the exercise of the Court’s discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court. This writ is rarely granted."

So if you're going to skip district court, you have to show exceptional circumstances. That's reasonable, as the Supreme Court certainly couldn't handle every appeal, that's why there are lower courts. If I understand my writs correctly, this type of writ hasn't been granted in 50 years. So what are the "exceptional circumstances"? The news articles say that 7 of the witnesses have recanted, but Scalia says that this isn't new info and that "Most of the evidence on which it is based is almost a decade old. A State Supreme Court, a State Board of Pardons and Paroles, and a Federal Court of Appeals have all considered the evidence Davis now presents and found it lacking."

The state trial court looked at this evidence and found "that the majority of the affidavits that Davis submitted had been sworn over five years earlier, and a few had been attested to over ten years earlier. The state trial court concluded that some of the affidavits contained inadmissible hearsay, that the post-trial affidavits by some of the State’s witnesses did not constitute cause for a new trial, and that several affidavits were not so material that they would have produced a different result. The state court ultimately denied the motion."

"The [state] supreme court nonetheless painstakingly detailed each of the seven post-trial affidavits by the State’s eyewitnesses, as well as six affidavits from additional witnesses Davis located, and explained how each affidavit failed to support Davis’s extraordinary motion for a new trial."

"After detailing these post-trial affidavits, among others, the [state] supreme court pointed to several defects in them, including the fact that Williams’s and Ferrell’s affidavits failed to affirmatively claim that Davis was not guilty, and that Murray’s unsworn affidavit was yet another inconsistent statement she had made years after the murder. The supreme court determined that none of the affidavits had the materiality required to support an extraordinary motion for a new trial. "

"As we have noted above, most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter. At trial, the jury had the benefit of hearing from witnesses and investigators close to the time of the murder, including both Davis and Coles claiming the other was guilty. We simply cannot disregard the jury’s verdict in this case."

Scalia saying "petitioner’s claim is a sure loser" may be untactful, but it might not be inaccurate. Scalia's third issue is with what the Supreme Court ordered. "Even if the District Court were to be persuaded by Davis’s affidavits, it would have no power to grant relief." He cites 28 U. S. C. §2254(d)(1), saying "Davis can obtain relief only if that determination was contrary to, or an unreasonable application of, “clearly established Federal law, as determined by the Supreme Court of the United States.”" Now we get to his quoted line:

"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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable. A state court cannot possibly have contravened, or even unreasonably applied, “clearly established Federal law, as determined by the Supreme Court of the United States,” by rejecting a type of claim that the Supreme Court has not once accepted as valid. "

Most of the quoters leave out that last sentence. That opinion is not unreasonable, particularly when you realize that actual innocence has a specific legal meaning. It means they really didn't do the act as opposed to other innocence claims where they did the act but it's not illegal because of for example insanity or self-defense. Scalia is making a point about treating one kind of defense claim differently from another, not mocking innocence by putting actually in quotes.

So what did the majority think? Stevens only addresses two of Scalia's points. First he says Scalia assume's Davis is guilty. I don't get this because you're innocent until proven guilty and he was found guilty by a unanimous jury. Again, it's a legal term, and he's guilty, it could be overturned, but it's true now. Stevens says "He does this even though seven of the State’s key witnesses have recanted their trial testimony; several individuals have implicated the State’s principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence,”. But I far as I can tell several courts did do extensive investigations into those same affidavits and weren't convinced.

He also says, "The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. Simply put, the case is sufficiently “exceptional” to warrant utilization of this Court’s Rule 20.4(a)" which would seem to say that every capital crime is exceptional which seems wrong. You may be against capital punishment but it is the current law of the land.

Stevens also says the court could get around the §2254(d)(1) limitations. He quickly mentions three reasons but just cites cases and I'm too lazy to track those down at this point, particularly as they all sound a little vague ("expressly leaving open", "certain actual innocence claims", "arguing that Congress intended"). Finally he just says, that if he's innocent then yeah the court could do something and says "Justice Scalia would pretermit all of these unresolved legal questions on the theory that we must treat even the most robust showing of actual innocence identically on habeas review to an accusation of minor procedural error." There's a point to be made that this is important and the claims are not minor nitpicks, but I think Scalia gets that and is trying to weigh the claims.

So yeah, if he's really innocent exceptional things should happen. The question is how many appeals can happen. Scalia points out that more than 3 courts have looked at this evidence, one for over a year, and weren't convinced enough to overturn a unanimous jury. Without new evidence or claims of improper procedure, what's the basis for further appeals? You can always say, "but if he's innocent...". It comes back to the death penalty argument, and I'm not sure I could sentence someone to death without hard evidence as in this case. I can say this, Scalia's dissent is well written and seemingly well reasoned; at least enough to refute the various rants that he wants to kill the innocent.

Robert Franklin also has some good thoughts on this.

On a related note: Justice Sonia Sotomayor didn't participate at all in this case; though that same day she did cast her first vote on the death penalty, "joining three other members of the Supreme Court in dissent as the Court permitted the execution Tuesday of an Ohio inmate, Jason Getsy, 33." "Sotomayor would have granted a stay of execution, along with Justices Breyer, Ginsburg and Stevens" but since those 4 lost, I believe that means the other five denied the stay.

The obvious conclusion is that yes Sotomayor will be a liberal, but Orin Kerr isn't impressed, "I personally don't see very much in this: Recall that one of Justice Alito's very first votes was a vote against lifting a stay of an execution when the other conservative Justices voted to lift the stay. It makes sense that a new Justice with little experience in capital cases would be extra cautious, so it's hard to read much into this, I think."