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When "strict constructionism" overrules common sense
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OAW
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Aug 18, 2009, 03:21 PM
 
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.
And Justice Antonin Scalia in dissent (joined by Justice Clarence Thomas as always) stated ...

Originally Posted by Justice Scalia
“This court has never held,” Justice Scalia wrote, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
http://www.nytimes.com/2009/08/18/us/18scotus.html

An absolutely stunning, though not surprising view coming from the most "conservative" members of the Supreme Court.

OAW
     
subego
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Aug 18, 2009, 04:41 PM
 
The very next line in the article after the Scalia quote is "[t]hat question is indeed unresolved."

So... your problem is?


Look, I think Scalia is a big jerk, but the guy does actually know his constitutional law.
     
hyteckit
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Aug 18, 2009, 05:35 PM
 
Wow. So the state can lawfully execute a person who has been found innocent as long as he was proven guilty initially.

So what's the purpose of the habeas court or appeals court anyway?

The state can legally execute the person whether or not he is found innocent in habeas court.
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ort888
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Aug 18, 2009, 06:57 PM
 
This seems like one of those "calls from the governor" types of deals.

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Chuckit
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Aug 18, 2009, 07:54 PM
 
Originally Posted by hyteckit View Post
Wow. So the state can lawfully execute a person who has been found innocent as long as he was proven guilty initially.

So what's the purpose of the habeas court or appeals court anyway?

The state can legally execute the person whether or not he is found innocent in habeas court.
It doesn't sound that way. Scalia is saying that the law is unclear on this point. It would have to be clear in order for this to be lawful.
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Big Mac
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Aug 18, 2009, 10:57 PM
 
Originally Posted by subego View Post
Look, I think Scalia is a big jerk. . .
Why?

"The natural progress of things is for liberty to yield and government to gain ground." TJ
     
colourfastt
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Aug 18, 2009, 11:21 PM
 
There is a Supreme Court holding that actual proven innocence (DNA testing, etc.) is not cause for releasing one from incarceration. So, apparently Scalia is taking this one step further and stating that innocence is not compelling enough to overrule the execution.
     
subego
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Aug 19, 2009, 12:51 AM
 
Originally Posted by Big Mac View Post
Why?

Still the same reason from last time you asked.

He behaves as if abrasiveness is valid in and of itself rather than being a context dependent tool
     
OAW  (op)
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Aug 19, 2009, 10:00 AM
 
Originally Posted by subego View Post
The very next line in the article after the Scalia quote is "[t]hat question is indeed unresolved."

So... your problem is?
This is one of those situations where there is a vast difference between what is legal and what is justice. Justice Scalia, true to form, is solely focused on the former. To dissent in this particular situation and essentially say that it is not unconstitutional to proceed with an execution even though the guy may be actually innocent ... simply because he had a "full and fair trial" is beyond the pale.

IMO, this is one of those instances when a judge should have "empathy" instead of being a slave to the letter of the law. The law exists to serve the people. Not the other way around.

OAW
     
BadKosh
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Aug 19, 2009, 01:32 PM
 
So, forget the laws? It is more important to feel than think.
     
OAW  (op)
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Aug 19, 2009, 02:29 PM
 
Originally Posted by BadKosh View Post
So, forget the laws? It is more important to feel than think.
No. This isn't a simplistic conflict between "thinking" and "feeling". This is about what kind of "thinking" one does. Do you "think" an innocent man should be executed if he received a "fair" trial but was found guilty nevertheless. As has been demonstrated to be the case on on hundreds of occasions? Suppose evidence is uncovered after the trial that exonerates the individual ... do you "think" he should be executed anyway? Would you take the attitude of "it sucks to be you!" toward this individual and "think" that that's ok because the law said that the court does not have to hear an appeal?

Again, if you do that may be legal ... but it's certainly not justice.
     
Shaddim
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Aug 19, 2009, 03:06 PM
 
Originally Posted by OAW View Post
Again, if you do that may be legal ... but it's certainly not justice.
Then fix the damned law. It's not their job to make-up "justice" just because people feel it's the "right" thing to do. The Left controls congress now, maybe you could actually work on this problem instead of bitching at each other?
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turtle777
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Aug 19, 2009, 03:08 PM
 
Originally Posted by Shaddim View Post
Then fix the damned law. It's not their job to make-up "justice" just because people feel it's the "right" thing to do. The Left controls congress now, maybe you could actually work on this problem instead of bitching at each other?
Why fix the law ?

All you need is a Latina women with the wealth of her experiences and some compassion...

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nonhuman
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Aug 19, 2009, 03:10 PM
 
Another thing that people consistently fail to consider in situation where evidence is discovered that could exonerate a convict: THE PERSON WHO ACTUALLY COMMITTED THE CRIME COULD STILL BE ON THE LOOSE. We're not 'just' talking about executing (or at least imprisoning) and innocent person, but also about knowingly allowing criminals to roam free, even those that have committed crimes we're willing to execute an innocent person for.
     
subego
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Aug 19, 2009, 03:38 PM
 
Originally Posted by OAW View Post
To dissent in this particular situation and essentially say that it is not unconstitutional to proceed with an execution even though the guy may be actually innocent ... simply because he had a "full and fair trial" is beyond the pale.

These are two different things.

What he's dissenting against is whether this guy deserves a hearing after having been denied one. Scalia thinks he's guilty, and therefore should have his petition denied.

The quote is in regards to what would happen should the guy be found innocent by the habeas court, and then that's allowed to overturn previous rulings. There isn't any constitutional mechanism to run roughshod over a bunch of lower courts who have done their job properly and constitutionally. If the court invents one, it will have a ripple effect through a mess of previously set precedents.
     
OAW  (op)
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Aug 19, 2009, 04:15 PM
 
Originally Posted by subego View Post
These are two different things.

What he's dissenting against is whether this guy deserves a hearing after having been denied one. Scalia thinks he's guilty, and therefore should have his petition denied.

The quote is in regards to what would happen should the guy be found innocent by the habeas court, and then that's allowed to overturn previous rulings. There isn't any constitutional mechanism to run roughshod over a bunch of lower courts who have done their job properly and constitutionally. If the court invents one, it will have a ripple effect through a mess of previously set precedents.
Scalia thinks a criminal defendant is guilty? Oh that's a shocker!

I suppose that I believe that a person's life is more important that the court's inconvenience in such a situation. But to each his own. And clearly the Supreme Court does have a constitutional mechanism to order a lower court to reconsider the case. They just did.

OAW
     
Gee-Man
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Aug 19, 2009, 06:01 PM
 
Alan Dershowitz had a really good take on this one:

Originally Posted by Alan Dershowitz
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.”
This is what it means to let supposed "strictness" to the letter of the law (which is arguable anyway, but let's just for the sake of argument give Scalia the benefit of the doubt on this) override basic human rights. Justice Kennedy's response noted the same thing as Dershowitz:

But imagine a petitioner in Davis's situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent's reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.
     
subego
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Aug 19, 2009, 08:50 PM
 
Originally Posted by OAW View Post
I suppose that I believe that a person's life is more important that the court's inconvenience in such a situation.

A guilty person's life? Wouldn't you wait for someone you thought had a valid claim of innocence?

That's the crux of it. I think it's unreasonable to expect Scalia to start the process rolling if he thinks the guy is guilty.

Likewise, "inconvenience" is an understatement. We're basically talking about blowing out the entire appeals process as we know it. Judge OAW would do that for someone he thought was guilty?

Next time I commit a triple murder, I'm so making sure they put it in your court.
     
OAW  (op)
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Aug 19, 2009, 09:15 PM
 
Dude. Look at Gee-Man's post above. It pretty much sums up the incredulousness of Scalia's position. If you agree then that's cool. I, OTOH believe that a judge should at all times show judgement. And in this instance Scalia and Thomas' is sorely lacking.

OAW
     
subego
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Aug 19, 2009, 09:33 PM
 
Originally Posted by Gee-Man View Post
Alan Dershowitz had a really good take on this one:

Scalia concurred on a decision (cited in his dissent) in which the court opined the type of scenario Dershowitz creates here would be a valid reason to violate constitutional law.

In light of Dershowitz basing his argument on a false accusation, I'm not going to give Dershowitz's smear on Scalia being a Catholic the dignity of a response.
     
subego
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Aug 19, 2009, 09:36 PM
 
Originally Posted by OAW View Post
If you agree then that's cool.

I would agree if that's what Scalia was saying. It's not.
     
OAW  (op)
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Aug 19, 2009, 09:54 PM
 
In no way, shape, or form did Dershowitz "smear" Scalia for being Catholic. He simply pointed out the hypocrisy in Scalia's position based upon Catholic teaching against intentionally killling the innocent. Especially when he has said that if following the Constitution conflicted with Church teaching then the thing to do would be to resign from the Court.

OAW
     
subego
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Aug 19, 2009, 10:33 PM
 
Originally Posted by OAW View Post
He simply pointed out the hypocrisy in Scalia's position...

Doesn't Scalia have to actually hold that position for him to be hypocritical?

As I've said, and is made pretty clear in the NYT article with the Rehnquist quote on Herrera vs. Collins (with which Scalia concurred), this is not the position he holds. Dershowitz is using a straw man.

Just to be clear, I like Dershowitz, and can't stand Scalia.
     
BadKosh
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Aug 23, 2009, 01:54 AM
 
So the laws are to mean nothing? Perhaps getting competent lawyers to draft the correct wording of the laws might help?
     
ebuddy
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Aug 23, 2009, 09:25 AM
 
Originally Posted by subego View Post
Doesn't Scalia have to actually hold that position for him to be hypocritical?

As I've said, and is made pretty clear in the NYT article with the Rehnquist quote on Herrera vs. Collins (with which Scalia concurred), this is not the position he holds. Dershowitz is using a straw man.

Just to be clear, I like Dershowitz, and can't stand Scalia.
Yes, but this does not exonerate Scalia and Thomas of their most egregious offense; being Conservatives.

No one wants you or your pesky facts interfering with a good partisan lambasting.
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Gee-Man
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Aug 23, 2009, 06:47 PM
 
Originally Posted by ebuddy View Post
Yes, but this does not exonerate Scalia and Thomas of their most egregious offense; being Conservatives.
     
ebuddy
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Aug 23, 2009, 07:13 PM
 
Originally Posted by Gee-Man View Post
World's smallest violin pic to indicate that someone is whining
What else am I supposed to gather? You posted an article trying to indict Scalia for having an opinion on the letter of the law while actually ruling contradictory to it when necessary. So... what's the problem with ruling justly while wanting more clarity in the law? You don't like Scalia?
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Shaddim
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Aug 23, 2009, 11:08 PM
 
No, they just like crying.
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Gee-Man
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Aug 25, 2009, 11:02 PM
 
Originally Posted by ebuddy View Post
What else am I supposed to gather?
I posted the Dershowitz article because I thought it was an interesting take on Scalia's opinion, relevant to this topic. Obviously, you and some other people people disagree with it, but you were the first one who brought in the "oh, us poor conservatives, always being picked on" angle. So I called you on it.

Need I remind you, other conservative members of the court also disagreed with Scalia, including Roberts and Alito. So are Roberts & Alito, both appointed by President Bush, participating in a good "partisan lambasting" too?
     
subego
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Aug 26, 2009, 02:57 AM
 
Originally Posted by Gee-Man View Post
Obviously, you and some other people people disagree with it

I'm not disagreeing with Dershowitz, I'm pointing out his argument is based on an error of fact.
     
ebuddy
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Aug 26, 2009, 07:27 AM
 
Originally Posted by Gee-Man View Post
I posted the Dershowitz article because I thought it was an interesting take on Scalia's opinion, relevant to this topic. Obviously, you and some other people people disagree with it, but you were the first one who brought in the "oh, us poor conservatives, always being picked on" angle. So I called you on it.

Need I remind you, other conservative members of the court also disagreed with Scalia, including Roberts and Alito. So are Roberts & Alito, both appointed by President Bush, participating in a good "partisan lambasting" too?
Scalia has an opinion and your article frames it as such; 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.

In fact, Scalia authorized no such thing. Besides, Dershowitz is wrong on Catholic Doctrine;

St. Thomas Aquinas-Summa Theologica, II-II, q 64 art. 6, rep. ob. 3.; If the judge knows that man who has been convicted by false witnesses, is innocent he must, like Daniel, examine the witnesses with great care, so as to find a motive for acquitting the innocent: but if he cannot do this he should remit him for judgment by a higher tribunal. If even this is impossible, he does not sin if he pronounce sentence in accordance with the evidence, for it is not he that puts the innocent man to death, but they who stated him to be guilty. He that carries out the sentence of the judge who has condemned an innocent man, if the sentence contains an inexcusable error, he should not obey, else there would be an excuse for the executions of the martyrs: if however it contain no manifest injustice, he does not has no right to discuss the judgment of his superior; nor is it he who slays the innocent man, but the judge whose minister he is.
Though I'm not sure why a Jewish Law Professor feels compelled to rebuke a Catholic Justice on the grounds of Catholicism.

Scalia's point merely indicates the conundrum of justice and judicial finality. He also indicates in his dissent (something I'm sure you haven't read in its entirety) something a little more clear than the kneejerk opposition to Scalia would have you believe;

Transferring this case to a court that has no power to grant relief is strange enough. It becomes stranger still when one realizes that the allegedly new evidence we shunt off to be examined by the District Court has already been considered (and rejected) multiple times. Davis’s postconviction “actual-innocence” claim is not new. 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. (I do not rely upon the similar conclusion of the Georgia trial court, since unlike the others that court relied substantially upon Georgia evidentiary rules rather than the
unpersuasiveness of the evidence Davis brought forward. (See App. to Pet. for Writ of Habeas Corpus 57a–63a.)


i.e. Don't believe everything you read on the net, educate thyself. I see Scalia has as of August 9th, accepted Dershowitz's invite to debate.
ebuddy
     
   
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