"I offered up my innocence
I got repaid with scorn"
-- Bob Dylan
Scott Horton at Harper's points out two recent cases that underline a central tenet of perhaps the the most powerful and pervasive factions in America's judicial history: the "movement conservatives" who largely congregate in the Federalist Society, and whose god and high priest is the radical extremist and torture apologist, Antonin Scalia. And what is that central tenet? That the need of the state to put its citizens to death outweighs and overrules the actual innocence of wrongfully convicted individuals.
The first cast Horton considers is "the appeal of Troy Davis, a Georgia athletics coach tried and convicted of the murder of an off-duty policeman working as a security guard at a Burger King. Following the conviction in 1991, seven of the witnesses who testified against Davis recanted, several of them fingering the last major witness to appear against Davis as the actual killer." Several lower courts, packed with "movement conservatives" rejected the pleas for considering the new evidence for innocence. But this week, the Supreme Court sent the case back to Georgia with orders to hear the damn case already and look at the evidence.
But this commonsense application of hundreds of years of Anglo-American jurisprudence sent Scalia into one of his patented hissy fits. In a stinging dissent, he wrote:
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.
As Horton notes:
In other words, Scalia’s Constitution does not guarantee a man who has been convicted and sentenced to death – but who is actually innocent – a review of his case.
Of course not. The right of the powerful and the privileged to cow the rabble with the ever-present threat of execution by an implacable state obviously takes precedence over milksoppy considerations like "justice." In fact, if the state is shown to have the power to execute demonstrably innocent people, that's all the better; the very irrationality of such an approach makes people even more cowed, more uncertain -- and thus less likely to upset the gilded applecart of their betters.
But the little godling is by no means alone in his bloodthirsty philosophy. Horton then cites the case of Sharon Keller, the top criminal judge in Texas, now on trial for refusing to accept paperwork for a stay of execution request, despite a Supreme Court ruling that day which called the convicted man's punishment into question. Her reason for refusal? The defense lawyers, who had encounted a computer breakdown, asked to submit their request after 5 p.m. Keller's answer? "We close at five." The man was killed.
As Horton notes, Keller too has been explicit in her belief that the state's judicial machinery of death is more important than innocence. He cites the NY Times:
In 1998, Judge Keller wrote the opinion rejecting a new trial for Roy Criner, a mentally retarded man convicted of rape and murder, even though DNA tests after his trial showed that it was not his semen in the victim. “We can’t give new trials to everyone who establishes, after conviction, that they might be innocent,” she later told the television news program “Frontline.” “We would have no finality in the criminal justice system, and finality is important.”
It certainly is. The power of the state rests ultimately on the finality of death, and its ability to impose it -- on its own citizens, and on the citizens of the world, whenever and whereever the dictates of domination and privilege require.
* * *
P.S. Of course, it's not surprising that movement avatar Scalia scorns the interminable workings of legal processes that gum up the power of the state. For Scalia believes that the state derives its power from God; it is His scourge and minister, and not some namby-pamby democratic assemblage of free citizens. As I noted in the Moscow Times yea these many years ago now:
Justice Antonin Scalia, who wrote the ludicrous and illegal ruling that appointed Bush to the presidency, declared in the theological journal First Things that the state derives its moral authority from God, not the "consent of the governed," as the Declaration of Independence would have it.
Rejecting that old reveler in licentiousness, Thomas Jefferson, Scalia proclaims that government "is the 'minister of God' with powers to 'revenge,' to 'execute wrath,' including even wrath by the sword." He rails against the "tendency of democracy to obscure the divine authority behind government" and "foster civil disobedience." Approvingly, he cites the Apostle Paul: "Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation." (Unless, of course, the Dominators need a "regime change" somewhere. Then the "powers that be" suddenly lose their divine ordination.)
A judge who believes that the state exists to "execute God's wrath by the sword," eh? Scalia would obviously be more at home with the jurisprudents over in Qom than in the heathenish precincts of a secular republic.
P.S.S. But as I noted here a while back, we should not scorn Scalia entirely. For in his public defense of torture last year -- in which he relied heavily on the venerable legal authority of Jack Bauer and "24" -- he actually provided us with an elegant mechanism for prosecuting Bush, Cheney, Yoo, Gonzalez and the whole gang for their crimes, without any messy "constitutional crisis" or the need for special prosecutors or any other extraordinary measure. I'm still waiting for some legal group - or even a local prosecutor -- to pick up the ball Scalia inadvertantly left on the ground and run with it.
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This story was published in the Baltimore Chronicle on August 20, 2009.