Scalia, Thomas not bothered if the innocent are executed

[PhantomWolf]

The OP claimed they didn't care if the "innocent" were executed. And yet, the subject in question isn't innocent. Which makes the whole thread pointless.

The court system always gets it perfectly correct?

This conviction was based on eye-wittness testimony, all of whom except two have now retracted that testimony, and nothing else. One of the two that didn't is the one that others now claim was the real killer.

Can you honestly state that this is a perfectly solid case with no reasonable doubt to it?

 

[Skeptic Ginger]

The court system always gets it perfectly correct?

This conviction was based on eye-wittness testimony, all of whom except two have now retracted that testimony, and nothing else. One of the two that didn't is the one that others now claim was the real killer.

Can you honestly state that this is a perfectly solid case with no reasonable doubt to it?

...

Apparently I need to repost this from the OP:

...“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.”

Let me restate that. According to Scalia: The court has never held that execution of an innocent man is forbidden by the Constitution as long as some semblance of a fair trial took place. The quality of the defense, the quality of the evidence are not important. It's the procedure that is important.

As for the empirical claim Davis is "not innocent", I would definitely quibble with the wording of that statement. Davis was convicted in a court that while following the law, did not determine Davis was 'not innocent' of the murder. The court merely found under a semblance of a trial ('fair' omitted purposefully) that Davis was guilty by a legal standard.

 

[thaiboxerken]

Who cares if the guy might be innocent, as long as he was convicted in a court of law...............

Scalia is scum.

 

[Rolfe]

Eyewitness identification is a complete hornet's nest. If someone who already knew the suspect well, and got a really good look at him, is cetain of the identity, well that's one thing. But identifying a stranger seen for a few minutes or moments, possibly under less-than-optimum conditions? I couldn't do it, that's for sure.

You'd think the sheer number of cases where eyewitnesses who gave confident and convincing testimony were later proved to be wrong by DNA analysis or similar would make the courts treat such evidence with caution.

Rolfe.

 

[PhantomWolf]

Eyewitness identification is a complete hornet's nest. If someone who already knew the suspect well, and got a really good look at him, is cetain of the identity, well that's one thing. But identifying a stranger seen for a few minutes or moments, possibly under less-than-optimum conditions? I couldn't do it, that's for sure.

You'd think the sheer number of cases where eyewitnesses who gave confident and convincing testimony were later proved to be wrong by DNA analysis or similar would make the courts treat such evidence with caution.

Rolfe.

Unfortunately, even though they are the two weakest forms of evidence, eye-wittness testimony and confessions are still considered by courts and juries as the grails of evidence, often causing them to totally disregard the physical, or lack of physical evidence, that contradicts such things.

It is a hard battle to fight, changing people's conceptions, but it is one that needs to be fought to help stop more innocent people going to jail.

 

[Rolfe]

I suspect I have an unusually poor memory for faces. I often make mistakes, or fail to recoginse someone met once or twice before. If I had to identify someone I'd had a short conversation with last week, but whom I had never seen before in my life, I know I couldn't do it.

However, how good is the average person? Better than me, maybe, but some of the feats of memory I see alleged in court are frankly beyond the bounds of credibility.

Rolfe.

 

[PhantomWolf]

I suspect I have an unusually poor memory for faces. I often make mistakes, or fail to recoginse someone met once or twice before. If I had to identify someone I'd had a short conversation with last week, but whom I had never seen before in my life, I know I couldn't do it.

However, how good is the average person? Better than me, maybe, but some of the feats of memory I see alleged in court are frankly beyond the bounds of credibility.

Rolfe.

It has been shown in study after study that human memory is terrible. Our brains take in everything our senses report, however once in, the storage system is absolutely crazy, and the retrieval system worse than a scrambled FAT.

Not only that, memories are extremely fragile and interrogation can destroy and distort them very easily.

Finally, people are fallible in that they can tell untruths, even while believing that what they say is not only true but helpful. Police are often under pressure and can put that pressure onto witnesses causing them to "remember" things they did not actually see or do. We have a case here in NZ where the police basically told the main witness that since, other than the suspect, he was the last person to see the victims alive, so if he couldn't finger the suspect then that would just leave him. No pressure to point someone out. Add that to the brains ability to add details in, and so often results in people picking someone out of a line-up even if the real person isn't in it, and the risk of false IDs and witness testimony is incredibly high.

Even our perception system has issues too. Another case from over here, where a police officer shot a suspect. One of the witnesses claimed that the victim was unarmed. He described him as wearing a dark blue top with a light silver stripe. In fact the victim was wearing a solid dark blue top, the silver stripe was a silver baseball bat with which he was threatening to kill the officers.

What this means is that not only are our memories fallible, fragile, and vulnerable to manipulation, but our very perception of the events themselves might not even have been correct in the first place. All this makes for a huge amount of faith to believe that eye-witness testimony alone should be enough to jail someone, let alone have them put to death.

 

[Rolfe]

I don't want to sound like a stuck record, but this is extraordinarily relevant to the Megrahi case. He was convicted entirely on the basis of alleged eyewitness identification.

Here is what he actually looked like in 1987 (the encounter with the eyewitness took place in 1988).

The encounter between the eyewitness and the suspect took place in November 1988. The eyewitness wasn't identified as a potential witness until September 1989. During the following year he was shown a large number of photos of people who may or may not have been the person he saw. He picked out several as "resembling" the man he saw. He also produced a photofit and an artist's impression of the man he saw, which actually look like two different people.

It wasn't until February 1991 that he was shown a picture of Megrahi. That is well over two years from the actual encounter - an encounter between a shopkeeper and a customer, which may have laster for 30 minutes at the most.

This is the picture he was shown.

Initially, he didn't pick out this picture at all, saying all the pictures he had been shown were too young. The investigators told him to go back and pick someone anyway. The way this was conducted was an open invitation for a "Clever Hans" trick, with the policemen all being aware of which picture was the suspect's, and able to see which picture the witness was looking at at any given moment. Megrahi's picture was also of grainier quality than the others. At the second time of asking, he picked that photo, but only saying that it "resembled" the purchaser.

That did it. The investigators had what they wanted. They never did show the witness the decent likeness of the colour photo, to confirm the identification, "for fear of tainting what he has already given us". In other words, for fear that the witness might say, no, sorry, that wasn't him.

Years passed. Years during which other photos of the suspect appeared in newpapers and magazine articles - articles the witness collected. In 1998-9 there was an absolute flurry of such articles. One of these was taken from the witness only four days before he attended the identity parade - a magazine he'd had in his possession for four or five months, and which had a good, up-to-date picture of the suspect as he looked in 1999.

In April 1999 the witness attended an identity parade. By this time the suspect looked like this.

Remember, the only picture the witness had actually identified up to this point is the black-and-white one above.

Just to be sure, at the identity parade the suspect (who was 47) was one of the oldest men in the line-up, even though if the witness's original statement from September 1989 was accurate, the man they were looking for would by then have been in his early 60s. (Some of the men in the line-up would only have been in their teens at the time the witness saw the man he described then as being about 50 years old - Megrahi himself was 36 at that time.) And to make it even surer, all the "foils" were wearing trainers, while Megrahi was obliged to wear a pair of bright red shoes.

Even then, although the witness picked out the "right" man, he again said this was only someone who "resembled" the man he'd seen for a short time over ten years previously.

That was the basis on which Abdelbaset al-Megrahi became "the Lockerbie bomber". I kid you not.

Rolfe.

 

[The Central Scrutinizer]

The court system always gets it perfectly correct?

Where did I say that?

This conviction was based on eye-wittness testimony, all of whom except two have now retracted that testimony, and nothing else. One of the two that didn't is the one that others now claim was the real killer.

Can you honestly state that this is a perfectly solid case with no reasonable doubt to it?

Several courts have said it is. At what point is anyone actually guilty of anything?

 

[The Central Scrutinizer]

I don't want to sound like a stuck record, but this is extraordinarily relevant to the Megrahi case. He was convicted entirely on the basis of alleged eyewitness identification.

Here is what he actually looked like in 1987 (the encounter with the eyewitness took place in 1988).

http://www.vetpath.co.uk/jref/m-1987.jpg

The encounter between the eyewitness and the suspect took place in November 1988. The eyewitness wasn't identified as a potential witness until September 1989. During the following year he was shown a large number of photos of people who may or may not have been the person he saw. He picked out several as "resembling" the man he saw. He also produced a photofit and an artist's impression of the man he saw, which actually look like two different people.

It wasn't until February 1991 that he was shown a picture of Megrahi. That is well over two years from the actual encounter - an encounter between a shopkeeper and a customer, which may have laster for 30 minutes at the most.

This is the picture he was shown.

http://www.vetpath.co.uk/jref/m-czech.jpg

Initially, he didn't pick out this picture at all, saying all the pictures he had been shown were too young. The investigators told him to go back and pick someone anyway. The way this was conducted was an open invitation for a "Clever Hans" trick, with the policemen all being aware of which picture was the suspect's, and able to see which picture the witness was looking at at any given moment. Megrahi's picture was also of grainier quality than the others. At the second time of asking, he picked that photo, but only saying that it "resembled" the purchaser.

That did it. The investigators had what they wanted. They never did show the witness the decent likeness of the colour photo, to confirm the identification, "for fear of tainting what he has already given us". In other words, for fear that the witness might say, no, sorry, that wasn't him.

Years passed. Years during which other photos of the suspect appeared in newpapers and magazine articles - articles the witness collected. In 1998-9 there was an absolute flurry of such articles. One of these was taken from the witness only four days before he attended the identity parade - a magazine he'd had in his possession for four or five months, and which had a good, up-to-date picture of the suspect as he looked in 1999.

In April 1999 the witness attended an identity parade. By this time the suspect looked like this.

http://www.vetpath.co.uk/jref/m-1999.jpg

Remember, the only picture the witness had actually identified up to this point is the black-and-white one above.

Just to be sure, at the identity parade the suspect (who was 47) was one of the oldest men in the line-up, even though if the witness's original statement from September 1989 was accurate, the man they were looking for would by then have been in his early 60s. (Some of the men in the line-up would only have been in their teens at the time the witness saw the man he described then as being about 50 years old - Megrahi himself was 36 at that time.) And to make it even surer, all the "foils" were wearing trainers, while Megrahi was obliged to wear a pair of bright red shoes.

Even then, although the witness picked out the "right" man, he again said this was only someone who "resembled" the man he'd seen for a short time over ten years previously.

That was the basis on which Abdelbaset al-Megrahi became "the Lockerbie bomber". I kid you not.

Rolfe.

Conspiracy theories are thataway ====>

 

[Brown]

I take no position on the underlying facts--whether Davis really committed the crime or not--but I am troubled by conviction for a capital crime based solely upon eyewitness testimony, with no additional physical evidence. But sometimes eyewitness testimony is all you have. And sometimes eyewitness testimony is pretty darn good. A simple assertion that "eyewitness testimony is unreliable" (or its related purportedly more authoritative assertion, "study after study has shown that eyewitness testimony is unreliable") is overbroad. Some eyewitness testimony is reliable, and some is not. A jury is supposed to be the body that decides which testimony is reliable and which is not.

A trial lawyer (even one with little experience) can help a jury sort out reliable from unreliable testimony. In my own experience, I have seen witnesses who were CERTAIN they knew what had happened reduced to blabbering piles of jelly on the witness stand when their stories were challenged. Oh, they were ONE HUNDRED PERCENT SURE all right, until on cross examination they were shown a photograph of the scene that differed significantly from their testimony, or until they suddenly remembered that there was a tree or a pole that blocked their view, or until they failed to recall something that every other eyewitness recalled. Very often, a witness who is CERTAIN freezes up when confronted with a problem in his own story, and you can almost hear that witness's credibility crashing into the ground. And there's your reasonable doubt.

It's "Hollywood dramatic" when a witness freezes, and it impresses the hell out of juries. And it happens fairly often (in criminal and civil cases).

By the same token, there are witnesses whose stories really hold up, even when challenged.

 

[Brown]

In a completely unrelated case, involving totally unrelated facts, the U.S. Supreme Court today refused to hold a prosecutor accountable for a violation of a defendant's rights, which led to the defendant's wrongful conviction and nearly got him executed. Read the opinion here.

Basically, if you are arrested, you are entitled as a matter of right to compel the government to tell you about all evidence that indicates that you might be innocent. (People who have seen the movie "My Cousin Vinnie" might be aware of this right.) John Thompson, who was a filthy criminal and who did a lot of bad stuff, got accused of murder. He demanded all exculpatory evidence, but the government forgot to mention an itsy-bitsy lab report that showed that the murderer (who had kindly left behind a sample of his own blood) had a different blood type than Thompson had. Without this exculpatory evidence, Thompson got convicted and was put on death row.

He made all sorts of challenges to his conviction (perhaps even arguing "actual innocence"), but lost them all. Hey, he had his fair trial.

And then by a bit of luck an investigator turned up the lab report--less than a month before Thompson's scheduled execution. The murderer had blood type B. Thompson had blood type O. The District Attorney was shocked, but did the right thing: he moved to stop the execution and vacate the conviction, and the courts agreed. Thompson was retried and was found not guilty.

Well, no harm done, I guess.

Except Thompson didn't think so. He sued the prosecutor (the district attorney in New Orleans) for violations of his rights. By a five-to-four decision (and cynics can accurately guess without being told who are the five and who are the four), the Supreme Court ruled that the District Attorney would not be held accountable. Why? Because Thompson WON his case on the grounds that the district attorney's office had failed to train its prosecutors, and the Supreme Court said that you can't hold a district attorney's office liable for a failure to train if there is just one single rights violation.

It may be no coincidence that the state in which this little "oops" occurred was a Southern state. And by the way, it wasn't an "oops" at all. The prosecutor didn't just make a mistake; he deliberately suppressed exculpatory evidence (a matter which apparently bothered him enough to confess it on his deathbed, a confession which turned out to be accurate).

 

[mikeyx]

Fortunately Scalia and Thomas do not echo the majority opinion on the Supreme Court at the moment.

Supreme Court Orders New Look at Death Row Case

So here's a not so unusual case of a man convicted of a serious crime, in this case one that got the death penalty, without any physical evidence tying him to the crime, only eyewitness accounts. Time and time again eyewitness accounts have been PROVED unreliable. And in this case, not only that, but many of the witnesses have recanted saying they were coerced by police to say they saw Davis.

Which you would think was a value held by the US Justice system.

Not so, according to Thomas and Scalia:

In other words, according to Thomas and Scalia, being convicted by unreliable eyewitnesses constitutes a fair trial and as long as you had a 'fair' trial then it's fine to execute you, innocent or not.

not good..................

 

[Rolfe]

Conspiracy theories are thataway ====>

We've been round this one already. Credible evidence of a miscarriage of justice is not a conspiracy theory. Whether it's Davis, the West Memphis Three or Megrahi. Or Barry George, Stefan Kiszko, Sion Jenkins, Sally Clark.... Need I go on?

Rolfe.

 

[Rolfe]

Basically, if you are arrested, you are entitled as a matter of right to compel the government to tell you about all evidence that indicates that you might be innocent.

I've told previously of a case I was involved in personally that showed this problem in a relatively trivial context. A group of lads were accused of burning some baby mice with a cigarette lighter. I submitted a post mortem report to the prosecution showing without a doubt that the mice had not been burned. They had been killed by stamping on their heads, that is, instantly. This is not a crime, even if some people would like to to be. The crime is causing unnecessary suffering, and instantaneous killing does not involve suffering.

I heard no more about it and assumed the case had been dropped. Until I saw a local TV news item about them being sentenced. They had pleaded guilty to burning the mice. I can only conclude the prosecution "lost" my report, and the boys were persuaded that a guilty plea would cop a lighter sentence.

Rolfe.

 

[JamesDillon]

I've told previously of a case I was involved in personally that showed this problem in a relatively trivial context. A group of lads were accused of burning some baby mice with a cigarette lighter. I submitted a post mortem report to the prosecution showing without a doubt that the mice had not been burned. They had been killed by stamping on their heads, that is, instantly. This is not a crime, even if some people would like to to be. The crime is causing unnecessary suffering, and instantaneous killing does not involve suffering.

I heard no more about it and assumed the case had been dropped. Until I saw a local TV news item about them being sentenced. They had pleaded guilty to burning the mice. I can only conclude the prosecution "lost" my report, and the boys were persuaded that a guilty plea would cop a lighter sentence.

Rolfe.

Typically the obligation to turn over exculpatory evidence does not attach until the commencement of trial. If the kids, for whatever reason, agreed to take a plea deal rather than going to trial, their rights to your report were not violated. One might question the ethics of a prosecutor who accepts a plea deal under those circumstances, but not all "exculpatory" evidence is as clear-cut as it apparently was in your situation.

 

[The Central Scrutinizer]

We've been round this one already. Credible evidence of a miscarriage of justice is not a conspiracy theory. Whether it's Davis, the West Memphis Three or Megrahi. Or Barry George, Stefan Kizscko, Sion Jenkins, Sally Clark.... Need I go on?

Rolfe.

Thataway ===>

 

[Rolfe]

Did someone say something?

Rolfe.

 

[Rolfe]

Typically the obligation to turn over exculpatory evidence does not attach until the commencement of trial. If the kids, for whatever reason, agreed to take a plea deal rather than going to trial, their rights to your report were not violated. One might question the ethics of a prosecutor who accepts a plea deal under those circumstances, but not all "exculpatory" evidence is as clear-cut as it apparently was in your situation.

Well, this was in England, and I'm not 100% sure of the legal position. My beef is mainly with the prosecuting authority, which in that case was the RSPCA. They're big on how concerned they are about animal welfare, and all the dreadful cruelty that goes on. But they have no scruples if it looks as if they might get a conviction to boost their public profile - that story was on the TV news, no coincidence.

They commissioned my firm to do the post mortem examinations, took the report, paid the bill, then continued with a prosecution they knew to be based on a lie. Lovely people, I don't think.

Rolfe.

 

[Debaser]

I find the attitude appalling, regardless of how common it is. It's one huge flaw in our justice system. I understand the need for rules and the need for judges to base rulings on them, but there really needs to be some overriding principle of true justice in there along with the rules.

I see your problem here. You/we have a legal system. Whether or not the law delivers justice is a different matter entirely.