Merged Scalia is dead

[Suddenly]

I don't see where the Constitution bars a retrial based on new evidence, either. What was Scalia's point, exactly, what was the context?

Doesn't bar it, sure. Doesn't require it is more the point.

The case is Herrera v. Collins, 506 U.S. 390 (1993)

link

Guy is convicted of murder in Texas. Files a habeas petition in federal court ten plus years later alleging actual innocence. Rehnquist writes a somewhat odd petition that doesn't say or not say, just assumes for sake of argument, that actual innocence is a ground for habeas relief. He then says the guy's case wouldn't qualify under any hypothetical standard because the new evidence it is just a bunch of affidavits and affirms the lower court's denial.

Scalia joins the majority opinion but writes separately to more or less make fun of Rehnquist's opinion for being less than direct. This is the language, with the quotation that is often used in bold:

We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be "actually innocent." I would have preferred to decide that question, particularly since, as the Court's discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) "shocks" the dissenters' consciences, post, at 1, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of "conscience shocking" as a legal test.

I nonetheless join the entirety of the Court's opinion,including the final portion (pages 26-28)--because there is no legal error in deciding a case by assuming arguendo that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution [n.1] lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.

Personally, I think "conscience shocking" would be a pretty good test as to determining whether the Constitution allows the execution of innocent people, but I'm a liberal.

 

[paulhutch]

Read this on SCOTUS blog this evening [emphasis mine]:

http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/

In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year. The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.

 

[Minoosh]

But the Catholics have a fairly unique hierarchy with an actual head of the church, unlike Muslims for example, or Protestants. So why call yourself Catholic if you don't accept that fact?

I asked a dissident Catholic that - he disagreed with the Church position on contraception. He replied, basically, that he felt he belonged and had every right to disagree with the pope. Something about liberalizing from within. He was part of the Christian left, which is sizable.

 

[newyorkguy]

Just to be clear, this was a death penalty case and Leonel Herrera (or his lawyers) were trying to get a court to block the execution. There were serious questions as to Herrara's guilt. The eighth amendment issue was raised to allege that executing someone who might well be innocent of the crime was "cruel and unusual punishment." But the Court didn't agree. Several months later Herrara was executed. He went to his death proclaiming his innocence.

Of course what people like Scalia never seem to understand is, if you convict and execute an innocent man, that means the guilty party, the actual murderer, goes free.

Is that what we want?

 

[seayakin]

It seems to me that the the real winner in the obstructionism can be moderate republicans and Lindsay Graham who can strongly influence the appointee. If they can work with Obama and get a candidate that is acceptable to both, they get someone more aligned with their thinking.

Sent from my Nexus 9 using Tapatalk

 

[thaiboxerken]

Scalia was a piece of garbage that made the world worse. I'm glad that dung heap is dead.

 

[BobTheCoward]

Just to be clear, this was a death penalty case and Leonel Herrera (or his lawyers) were trying to get a court to block the execution. There were serious questions as to Herrara's guilt. The eighth amendment issue was raised to allege that executing someone who might well be innocent of the crime was "cruel and unusual punishment." But the Court didn't agree. Several months later Herrara was executed. He went to his death proclaiming his innocence.

Of course what people like Scalia never seem to understand is, if you convict and execute an innocent man, that means the guilty party, the actual murderer, goes free.

Is that what we want?

What we want and what is the outcome based on the Constitution are two different things.

 

[Suddenly]

Just to be clear, this was a death penalty case and Leonel Herrera (or his lawyers) were trying to get a court to block the execution. There were serious questions as to Herrara's guilt. The eighth amendment issue was raised to allege that executing someone who might well be innocent of the crime was "cruel and unusual punishment." But the Court didn't agree. Several months later Herrara was executed. He went to his death proclaiming his innocence.

Of course what people like Scalia never seem to understand is, if you convict and execute an innocent man, that means the guilty party, the actual murderer, goes free.

Is that what we want?

I don't... but as a matter of personal opinion I think the US system of criminal justice is absurd to the core. That is, unless one wants guilt and innocence determined by a mutant form of trial by combat. The system seems to think that a random juror can determine the truthfulness of a witness by just watching him or her testify, by mannerisms, and so on. That is patently insane, but here we are.

That said, execution is besides the point. He could have gotten a $50 fine and the system still stops looking for the real killer.

Scalia was at least honest about not giving a crap about the accuracy of the system as long as it was what some dead guys intended... that is almost admirable in a twisted way.

 

[thaiboxerken]

What we want and what is the outcome based on the Constitution are two different things.

Exactly. Bush vs. Gore, for instance, was not an outcome base on the Constitution.

 

[Suddenly]

Exactly. Bush vs. Gore, for instance, was not an outcome base on the Constitution.

The best part of that case is when the majority opinion came right out and said the equal protection analysis it was about to use wasn't binding precedent for future cases. It was like they didn't even try to hide that the opinion was nonsense.

Definitely something to consider when weighing Scalia's legacy.

 

[Foolmewunz]

What we want and what is the outcome based on the Constitution are two different things.

Not if you're Antonin Scalia, apparently. You start with "what I want" and then you find stuff in the Constitution to support that. If the Constitution doesn't support your wishes? You ignore it.

 

[Skeptic Ginger]

I asked a dissident Catholic that - he disagreed with the Church position on contraception. He replied, basically, that he felt he belonged and had every right to disagree with the pope. ...

Isn't that how we got Protestants?

 

[Skeptic Ginger]

Just to be clear, this was a death penalty case and Leonel Herrera (or his lawyers) were trying to get a court to block the execution. There were serious questions as to Herrara's guilt. The eighth amendment issue was raised to allege that executing someone who might well be innocent of the crime was "cruel and unusual punishment." But the Court didn't agree. Several months later Herrara was executed. He went to his death proclaiming his innocence.

Of course what people like Scalia never seem to understand is, if you convict and execute an innocent man, that means the guilty party, the actual murderer, goes free.

Is that what we want?

It also makes the state a murderer. His belief about executing an innocent as long as the person had due process was his most disgusting.

 

[Tony Stark]

Isn't it the biggest tenet in Catholicism (as opposed to Protestantsim) that the Pope is the final arbiter of everything on Earth? Not that I have any problem believing that many Catholics don't actually follow their own religion.

 

[BobTheCoward]

Not if you're Antonin Scalia, apparently. You start with "what I want" and then you find stuff in the Constitution to support that. If the Constitution doesn't support your wishes? You ignore it.

Considering supreme court rulings can so often be classified as liberal or conservative, I don't think there is much hope that a judge is looking for truth.

So glad I'm neither liberal nor conservative. A pic on both your houses.

 

[newyorkguy]

It also makes the state a murderer. His belief about executing an innocent as long as the person had due process was his most disgusting.

Exactly. And to say the founding fathers intended this is almost blasphemous. It's the kind of government action that made them revolutionaries.

 

[Skeptic Ginger]

Considering supreme court rulings can so often be classified as liberal or conservative, I don't think there is much hope that a judge is looking for truth.

So glad I'm neither liberal nor conservative. A pic on both your houses.

We just hear about rulings through partisan tinted glasses. If the ruling doesn't go their way the Pubbies claim it is legislating from the bench. And while I believe Scalia and Thomas were indeed partisan, I don't think they necessarily all are.

I don't know enough about Alito, he could be as well especially since the right wingers want the court to support their agenda and that was the goal when he was appointed.

Haven't Kennedy, O'Conner and Roberts all ruled on both sides of the partisan divide?

Certainly Reagan appointee George Jones III didn't let his religion affect his ruling in Kitzmiller/Dover.

I think there are nonpartisan judges out there. But that's not what the Pubbies want, they want partisan judges.

 

[Foolmewunz]

I think there are nonpartisan judges out there. But that's not what the Pubbies want, they want partisan judges.

.... while bitching about judicial activism from partisan judges who don't hold to their desire to return to neolithic standards.

 

[Suddenly]

Exactly. And to say the founding fathers intended this is almost blasphemous. It's the kind of government action that made them revolutionaries.

The framers did not include the right to appeal in the bill of rights. This was mostly because at the time of ratification, the idea of an appeal of a criminal case was largely unheard of. It was well into the 19th century before it was settled that federal courts were allowed to hear criminal appeals at all, much less that there was a right to same. That is how concerned the framers were about the wrongfully convicted.

States were no better. One state I can think of didn't have an appeal of right until 2010. You had the right to file there before then, but they didn't have to actually hear the case until they changed the rules.

Imputing any kind of belief system to the framers regarding challenging the validity of a criminal verdict is at best pure speculation. At worst they gave not a crap. Maybe they start caring if you teleport them to 2016. Who knows.

If I'm forced to care about what specifically the framers thought about wrongful convictions, I'd end up agreeing with Scalia about all this. They seemed to leave it all up to the executive pardon power. Of course, I think deferring to the framers is total nonsense, so I try to avoid appealing to them whenever possible.

 

[Desert Fox]

The thing is that he was appealing not under right to a fair trial but under "Cruel and Unusual Punishment." Even some of the concurring opinions do seem to agree that executing an innocent defendant would be unconstitutional. If I am understanding their opinion, it was either that Herrera was not innocent or that a jury will be without error.