Is it legally acceptable for the Supreme Court of the United States to tacitly endorce the execution of an innocent man? Antonin Scalia thinks it is. Consider this remark from his dissenting opinion in the Troy Davis case:
“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.”
Actually, Judge Scalia’s opinion is a reflection of legal orthodoxy. Appeals courts, including the Supreme Court of the United States, are generally unwilling to consider new evidence of actual innocence unless the original trial was riddled with egregious legal errors. If the trial rises to a minimal level of basic fairness appeals courts don’t like to meddle even when, as in the Davis case, this means a defendant with strong claims to actual innocence will be executed.
The law is supposed to be logical, precedent-driven, emotionally detached, and technically rigorous. A conviction stands unless somebody can show that the process (not the evidence) was flawed. The sufficiency of the evidence is a matter for the jury to assess, and if the jury bought the prosecution’s story that is that.
But certainly exceptions are made when new evidence emerges.
That depends what kind of “new evidence” we are talking about. DNA evidence can occasionally prove that a convicted defendant could not have committed a crime. Even testing DNA evidence in cold cases meets with considerable resistance. Since few cases hinge on DNA evidence so the issue is largely moot.
The Troy Davis case is largely dependant on eyewitness testimony. What happens when seven eyewitnesses decide they got it wrong the first time? The legal system almost always sides with the original testimony. To do otherwise would be to suggest that eyewitnesses are prone to error, that they sometimes get confused, that prosecutors and investigators can artificially transform initial confusion into courtroom confidence. Worse still, recanting witnesses often claim they were bullied into supporting the state’s theory with threat’s and false promises. Credit that sort of claim and you undermine public confidence in the system.
Maintaining public confidence in the system has always been the bottom line. When finality and truth collide, the law almost always sides with finality. (For an excellent summary of the kind of eyewitnesses used in the Davis case check out this excellent analysis from Alexandra Natapoff.)
Nonetheless, Antonin Scalia’s statements have sparked a considerable outrcy. He appears to be saying that if the state argues that 2 plus 2 is 5 and the jury buys the math, then, for legal purposes, 2 plus 2 really is 5.
Scalia’s casuistry may be good law, but isn’t it bad morality?
That is the key issue here. Alan Dershowitz, the flamboyant and controversial Harvard Law professor, accuses Scalia of departing from the moral logic of his Catholic faith. Scalia has stated that if fidelity to the law ever forced him to depart from the dictates of his religion he would resign from the Supreme Court. Dershowitz argues that Scalia’s opinion in the Davis case gives the lie to that bold promise. Surely, Dershowitz says, Catholic teaching doesn’t condone the execution of the innocent.
The Harvard professor has even challenged Scalia to debate him on the issue. That’s a fight I’d buy tickets to. When, as frequently happens, Christians employ the rhetoric of the Antichrist we’ve got a problem–even if it takes a Jew or (as in the case of the civil rights movement) a Hindu to point out the contradiction.
Scalia has also drawn fire from Paul Campos in The Daily Beast.
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.
So what makes the Troy Davis case different? As they used to say in the 60s, “the whole world’s watching”. The legal system will never reform itself because most attorneys, eager to survive and prosper in the legal arena, adapt to the prevailing intellectual climate even when it is morally perverse. Bad law persists for the same reasons that Jim Crow segregation hung around for so long–it rarely benefits the folks in power to challenge the prevailing tenets of orthodoxy.
Gourps like Amnesty International and the Campaign to End the Death Penalty, in league with international celebrities like Jimmy Carter, Desmond Tutu and the Pope in Rome, have forced the legal system to abide by its bloody logic or depart from it. Antonin Scalia has elected to abide. His conclusion is morally repugnant but his legal logic is airtight.