So his comment was merely showing the present facts do not fit within the statute. A direct Consitutional challenge should, therefore not be sent down to the District Court, but should be given to the SCt itself to determine expressly if sucha right exists. It does not state such a right might not be found as existing by the Court, but the fact such a right has never been found in the past is relevant to show no violation of Federal law was "clearly established."
I agree with this in part. Justice Scalia, in a rather surprising mixing of his points, says that the right to avoid execution is--at best--undecided. He also says that to the extent the federal habeas corpus statutes need to be considered, they should be considered in connection with a case before the full Court.
If the issue is undecided, then it does seem a bit strange to say that the issue ought to be decided--even temporarily--AGAINST the INNOCENT convict. Wouldn't it make sense to err on the side of letting an innocent man go free rather than putting him to death? Note that I do not say that the convict here actually is innocent; rather, I say that he would not have any purported right to get relief unless he was innocent. If he's not innocent (and Justice Scalia repeatedly returns to discussing how no one has bought his story so far), then he gets no relief.
Justice Scalia says that even if he's innocent, he has no federal right to be saved from execution.
Read Justice Stevens's response to Justice Scalia here. There are a few points of note (including suggestions that the purpose of such a district court hearing is to get the matter ready for full Court review), but one point struck me. Justice Stevens finds it strange that Justice Scalia would treat actual innocence as just another ground for federal relief:
JUSTICE SCALIA would pretermit all of these unresolved legal questions on the theory that we must treat even the most robust showing of actual innocence identically on habeas review to an accusation of minor procedural error. ... 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.
In effect, Justice Scalia would treat fully proven "I didn't do it" innocence as just another technicality. Aren't there stories that make fun of such jurisprudence?
By the way, I concede a bit with the "I don't care" remark. I don't think that Gerard was expressing absolute indifference, nor do I think Justice Scalia feels complete indifference. Gerard's position, which I think and maintain is quite comparable to Justice Scalia's, is that determining guilt or innocence IS NOT MY JOB. (As Gerard later says to Kimble on the phone, "That's right, Richard, I DON'T care; I'm not trying to solve a puzzle here," meaning that Gerard does not see it as his function to sort through the evidence and serve as judicial fact-finder.) Those who have the jobs of making such determinations and reviewing their validity have done their jobs and have found against the convict.
Where Gerard differs from Scalia is that Gerard felt that above all justice must be done. If a man was wrongfully convicted, even if his trial was fair, something must be done. Gerard removed Kimble from the reach of the state, which would seek to kill him if it could. But as you may recall, Gerard did not let Kimble go.
