Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“A human being should be able to change a diaper, plan an invasion, butcher a hog, conn a ship, design a building, write a sonnet, balance accounts, build a wall, set a bone, comfort the dying, take orders, give orders, cooperate, act alone, solve equations, analyze a new problem, pitch manure, program a computer, cook a tasty meal, fight efficiently, die gallantly. Specialization is for insects.”     Robert A. Heinlein,    Time Enough For Love

August 20, 2009

Disturbing Quote of the Day

by Stephen Littau

“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.” – From the dissenting opinion by Justices Scalia and Thomas on the question of whether death row inmate Troy Davis should receive a new trial after 7 eye witnesses against him recanted their testimonies against Davis.

So as long as the defendant has received a ‘fair trial’ and found guilty, actual innocence does not matter and the state can kill an innocent person according to Scalia and Thomas?

And these are who conservatives and some libertarians consider the ‘good guys’ on the Supreme Court? They certainly aren’t on this issue.

Hat Tip: The Daily Beast

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9 Comments

  1. Obviously, if so many witnesses recant their statements then it was not a fair trial. Why did this have to go to the surpeme court?

    Comment by Peter — August 20, 2009 @ 11:10 am
  2. Peter:

    Why did this case have to go to SCOTUS? I believe it’s because prosecutors, the courts, and government officials in general do not like to admit to making mistakes or believe in making corrections whenever mistakes are uncovered (WMD in Iraq anyone?).

    Troy Davis may well have shot that police officer BUT if the state cannot prove it then he needs to be let go. When 7 witnesses change their stories then IMO, it’s time for a new trial.

    And I would agree with you, he did not have a fair trial if false evidence was used against him.

    Comment by Stephen Littau — August 20, 2009 @ 11:53 am
  3. “actual innocence does not matter and the state can kill an innocent person according to Scalia and Thomas?

    Yes, they can. The state has been given that power. According to Scalia and Thomas, it would seem, but according to the law and the constitution they have told no untruth.

    I don’t know if I could separate them into good guys and bad guys. It’s more like those that tend to read what the law says and those that read what the law doesn’t say.

    Comment by John222 — August 20, 2009 @ 6:10 pm
  4. I think the point is this: You don’t second guess the first trial just because somebody changes their testimony after the fact. They could have all been paid off to change their testimony, they could all feel guilty about their testimony even if it was entirely accurate and true, there are many reasons why they might want to change it after the fact. It would undermine the entire system to change the verdict simply because the witness now change their testimony. Were they lying in the original trial, or are they lying now? They were swore at that time, they are now sworn now. It cannot be changed on this basis.

    Comment by Dr.D — August 20, 2009 @ 6:56 pm
  5. Re: Dr. D’s comment –

    If a system, as you persuade in your argument, can by its intrinsic design put an innocent man to death, then, sir, it is a system that is overdue to be undermined.

    Comment by Alan Lucero — August 21, 2009 @ 10:09 am
  6. Dr. D:

    Whether the witnesses were lying (or mistaken) then or are lying (or mistaken) now, either way this casts serious doubts on their testimonies.

    I also don’t think that putting a halt to the process of putting Troy Davis to death undermines the criminal justice system (which is already very much broken). At the very least Davis’ execution should not occur until a thorough investigation into why these individuals changed their stories has taken place. IMO, Davis should receive a new trial without these witnesses. As I have pointed out in previous posts, eye witness testimony is statistically unreliable to begin with.

    But Scalia and Thomas don’t seem to be concerned about whether Davis is guilty or not; they have become slaves to the legal process and have tossed common sense out the window.

    Alan M. Dershowitz made a very good observation in response to Scalia and Thomas’ dissent:

    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.”

    We have to remember that there is much more to this question than a legal process/principle here. This is a man’s life we are talking about.

    This is why I am adamantly opposed to the death penalty: what happens when the state is wrong? Are you okay with the idea of the state killing an innocent person?

    I know that I’m not.

    Comment by Stephen Littau — August 21, 2009 @ 10:14 am
  7. @ Stephen Littau
    We never execute anyone without a series of appeals, and it is expected that during those appeals his wife will step forward and make her presence known long before it gets to the supreme court. That would indeed be a case where there was no crime committed. Having witnesses change their story does not mean that no crime has been committed.

    The justice system has never been perfect; it is in the hands of human beings. Many criminals go unpunished, and some noncriminals are punished. Would you prefer that we simply give up and ignore crime and say that anything goes? Or perhaps we could give a suspended sentence for every crime? At some point we are going to get to the point that we cannot afford to house all the criminals we are developing with our lax attitudes towards crime, so we need to decide how we will deal with this abundance of criminals we are creating.

    With regard to the unreliability of eye witnesses, that is easily solved. Just ban all eye witness testimony. It will seem a little bit strange, but no stranger than the rest of what you seem to be thinking.

    Comment by Dr.D — August 21, 2009 @ 11:07 am
  8. To carry the scenario a little further, suppose the wife was unable to appear for whatever reason and did not become available as proof until the appeals process was exhausted?

    I see nothing here about letting criminals roam free, but rather should the state have the power to execute? Perhaps if the government didn’t spend so much time “creating” criminals they would have more resources available to devote to finding out the truth of the matter.

    Comment by John222 — August 21, 2009 @ 11:42 am
  9. Dr. D you have entirely too much faith in our criminal justice system. Thomas and Scalia do not care about actual innocence but process. Toward the close of this last term, Thomas and Scalia and three other Justices (the ‘conservative wing’) in Osborne stated that convicts have no Constitutional right to access DNA evidence which would conclusively determine Osborne’s guilt or innocence.
    http://www.thelibertypapers.org/2009/06/23/scotus-no-constitutional-right-for-dna-testing-post-conviction/

    Others have been victims of the process as well (example: not filing the right forms at the right time). In July of this year, Ronald Kitchen was the 20th Illinois death row inmate of 224 to be exonerated since 1977. That’s a 9% error rate. Kitchen was also a victim of the process until common sense ultimately prevailed.

    http://www.thelibertypapers.org/2009/07/13/ronald-kitchen-the-latest-death-row-exoneree/

    I’ll have to get into the eye witness testimony problem later…

    Comment by Stephen Littau — August 22, 2009 @ 10:46 am

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