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09.24 Unlocking secrets of sea level rise in Greenland [15 minute video]
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09.24 Brett Kavanaugh faces second allegation of sexual misconduct09.23 MARYLAND GOVERNOR REBUFFS CALL FOR CRIMINAL INVESTIGATION INTO BRETT KAVANAUGH ATTEMPTED RAPE ALLEGATIONS [Republicans above the law...]
09.19 'Killing a generation': one million more children at risk from famine in Yemen [Does America's government have empathy? Does it understand the concept of morality? The Saudi Air Force would be ineffective without U.S. military assistance...]
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09.18 Racist rioting in Chemnitz has reopened Germany’s east-west split [After 10,000 generations, we are all mixed-race. So let's become friends with our cousins instead!]
Give Me No Liberty, Give Me Death: Innocence is No Defense
First published in Empire Burlesque earlier today, 20 August 2009
"I offered up my innocence
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."
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:
As Horton notes:
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:
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:
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.
Chris Floyd has been a writer and editor for more than 25 years, working in the United States, Great Britain and Russia for various newspapers, magazines, the U.S. government and Oxford University. Floyd co-founded the blog Empire Burlesque, and is also chief editor of Atlantic Free Press. He can be reached at email@example.com.
This column is republished here with the permission of the author.
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This story was published in the Baltimore Chronicle on August 20, 2009.
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