But Is He Right?

Earlier this week, the Supreme Court did an extraordinary thing, granting an "original" habeas corpus petition (as opposed to something seeking review from a lower court) in the case of Troy Davis. Davis was convicted in 1989 of murdering a Georgia police officer, based largely on the testimony of nine eyewitnesses. He was sentenced to death. Since then, seven of the nine have recanted in some shape or form (some blaming police coercion for their testimony) and there's serious doubts about Davis's guilt.

What's extraordinary about the Supreme Court's action is that Davis has already exhausted all the traditional post-trial mechanisms for review. The only potential avenue left is to prove to some court that he is "actually innocent" and thus should not be executed (at the very least!). The Supremes granted Davis's petition and referred his case back to the district court for further fact finding.

Justice Scalia (along with Thomas) dissented from the Court's decision, in a dissent that's been roundly attacked as both legally and religiously suspect. Folks are outraged that Scalia seems to think that the Constitution would allow the execution of a person who didn't do the crime. I admit, it's a repulsive thought, but here's the thing - he's kind of right.

The Supreme Court has repeatedly handled cases where actual innocence claims were made, but dodged the issue. Although several individual justices (current and otherwise) have hinted that the Constitution would prohibit the execution of an innocence, the Court has never actually held that it does. Which, I think, is the nub of Scalia's dissent. Why, he argues, bother to send the case on another trip through fact gathering if none of what that trip turns up means anything, legally? Shouldn't the Court first hold that an innocent person can't be executed and provide some guidance on how that person can become "actually" innocent?

It seems like a niggling procedural point, but it's one that has to be dealt with. Thanks to the Anti-Terrorism and Effective Death Penalty Act (the Clinton give that just keeps on giving), state prisoners basically only get one shot at having their case reviewed in the federal courts. If the AEDPA prevents someone like Davis from presenting his innocence claims it might be unconstitutional. But a Court ruling to that effect could have massive ripple effects throughout the criminal justice system and should be confronted head on.

Don't get me wrong - if Scalia (and Thomas, remember) concluded somehow that the Constitution could not prevent the execution of an innocent person, I wouldn't be shocked. And I'd certainly disagree with that conclusion. But I don't think he's gotten to that point, because the Court has never squarely addressed the issue. So, for now, he's probably right, which is the real problem.