American Justice Is Not Blind, But It Is Truly Sick


By Dave Lindorff
The Public Record
Aug 20th, 2009

Supreme Court Justice Antonin Scalia and Federal District Court Judge 
Fernando Gaitan of the Missouri Western District Court have at least 
two things in common: they are both appointees of President Ronald 
Reagan, and they both think it’s just fine for the US to execute 
innocent people. The same can be said for Judge C. Arlen Beam of the 
8th Circuit Court of Appeals.

In a recent dissent in a 5-4 Supreme Court ruling ordering a habeas 
hearing in federal court for South Carolina death row inmate Troy 
Anthony Davis, a man slated to die after being convicted for the 
murder of an off-duty Savannah police officer, Scalia wrote, “This 
court has never held that the constitution forbids the execution of a 
convicted defendant who has had a full and fair trial but is later 
able to convince a habeas court that he is `actually’ innocent.”

For his part, Judge Gaitan, in Missouri, had two shots at considering 
the case of Joseph Amrine, a death-row inmate slated to die for the 
killing of a fellow prisoner in a Missouri state prison. Amrine  had 
been convicted of the knife slaying on the basis of the testimony of 
three alleged eyewitnesses—all of them fellow prisoners. [See my May 
1, 2003 report published in Salon.]

When two of those witnesses later recanted (suggesting that it was 
the third witness who had actually been the killer), Judge Gaitan 
rejected the habeas appeal, arguing that the two recantations 
couldn’t be believed, because the third witness had not changed his 
testimony. Later, when the third witness also recanted, Amrine’s 
attorney brought the case back to Judge Gaitan, but this time, the 
Judge again rejected the appeal, claiming that none of the witnesses 
was credible “because they are all criminals.” (Which of course begs 
the question of why Amrine should have been convicted in the first 
place based upon the testimony of the same three witnesses.).

Amrine didn’t get any help from the 8th Circuit Court of Appeals, 
which is also apparently packed with Scalia-like vampires. A three-
judge panel on that court, which included Reagan-appointee Judge 
Beam, as well as Clinton appointee Diane E Murphy and George H. W. 
Bush appointee Judge Morris Sheppard Arnold, unanimously upheld Judge 
Gaitan declaring that even if the three recantations might suggest 
Amrine was innocent, he could not get a new hearing or trial because 
his attorneys should have been able to discover the evidence earlier 
through “due diligence.” The judges, in rejecting Amrine’s appeal, 
wrote that, “even though convinced that had it been sitting as the 
trier of fact, it would have weighed the evidence differently,” an 
appellate court had to defer to the determination regarding 
credibility of recanting witnesses made by a lower court judge.

That is, procedural issues and rules trump facts, even in a death 
penalty case.

Happily for Troy Davis, a frighteningly narrow majority on the US 
Supreme Court disagreed with Justice Scalia’s view of the 
Constitution. Happily for Amrine, who is now a free man, the Missouri 
State Supreme Court disagreed with both Judge Gaitan and the 8th 
Circuit Court of Appeals panel, concluding that “a showing of actual 
innocence acts as a ‘gateway’ that entitles the prisoner to review on 
the merits of the prisoner’s otherwise defaulted constitutional claim.”

Justice Scalia’s pinched view of the Constitution is that if it ain’t 
written down in the document, it doesn’t exist. So even though there 
is a clear outlawing in the Constitution against “cruel and unusual” 
punishment, he purports to be unable to see how that could be 
construed to include being executed for a crime you did not commit.

It should sicken every American that our judicial system could 
condone execution of people that even the judges themselves concede 
are likely or even certainly innocent, because of procedural rules 
and politically imposed deadlines and appeals limitations, such as 
those imposed by former President Bill Clinton’s Anti-Terrorism and 
Effective Death Penalty Act, passed in 1995 in the hysteria following 
the Oklahoma City bombing of the Murrah Federal Office Building.

I once had the grisly experience, back in 1995, of watching several 
doomed men being carted off by armed police in the back of a flat-bed 
truck for a date with a bullet to the back of the head on the 
execution grounds in Xian China. I remember thinking at the time what 
a monstrous and uncivilized act this was. The trials in China are in 
name only, with the verdict pre-ordained, and any appeals, if they 
happen, perfunctory.

Yet how different are things here in the US? There is the same 
bloodthirsty slathering for public execution by the ghouls on the 
right, the same quiescence among the broader population. There is, 
perhaps one difference, and that is the political pandering to the 
death-obsessed by politicians who should know better. Those Reagan-
appointed judges—Scalia, Gaitan and Beam—and the many like them on 
federal and state benches across the country, were appointed 
precisely because they wanted to grease the skids to the execution 
chamber, and President Reagan, like Nixon before him and the Bushes 
after him, have made advocacy of state-sanctioned execution a lynch-
pin of their campaign efforts. But President Clinton was no 
different. He cut short his campaign for president so he could rush 
home to Arkansas to sign the execution warrant for a mentally 
impaired man, and later, pushed through the EDP Act to make appeals 
of death-row inmates much more difficult.

President Obama is not much better. While he has not yet signed on to 
any efforts to make executions easier, neither has he acted, as 
president, to correct the current abysmal situation, which has seen 
many people spend years or even decades on death rows, often coming 
within days or hours or even minutes of execution before finally 
being found innocent, and which has surely led to many executions of 
innocent people over the years.

Disturbingly, Obama has use the argument of “public vengeance” to 
justify the death penalty, writing in his memoir, that while he 
believes the death penalty “does little to deter crime,” he 
nonetheless supports it for crimes “so heinous, so beyond the pale, 
that the community is justified in expressing the full measure of its 
outrage by meting out the ultimate punishment.”

Surely Obama is smart enough to recognize that when a community is so 
enraged, that is precisely when the fairness of a trial becomes 
hardest to assure, and thus, when the chance of a wrongful conviction 
becomes the most likely. And yet he finds it safer to politically 
pander to those base instincts for vengeance.

At times like these, I am sorry I’m an atheist. It would be nice to 
think that there would be some special grim level of hell in store 
for the likes of Justice Scalia, Judge Gaitan, and Judges Beam, 
Arnold and Murphy—perhaps a row of cells from which they would be 
marched every few days to be strapped onto gurneys and administered 
an intravenous death potion, or into electric chairs through which a 
surge of high voltage would be sent, only to return to their cells 
for another round of waiting. Also for the likes of Nixon, Reagan, 
Clinton, the Bushes and, yes, Obama, who would be cast before howling 
mobs of the wrongly executed, who would call for their execution, 
after which they could be marched off to the same fate over and over.

Unfortunately, there is no such divine justice. Only the hope that 
one day, a more civilized and compassionate public will demand better 
of itself, its political leaders, and its judges.

There is no greater crime than the killing by the state of an 
innocent person, and yet, in America, such atrocities are not just 
happening, they are condoned by judges in the highest court of the land.

Dave Lindorff is a Philadelphia-based journalist. He is author of 
Killing Time: An Investigation into the Death Penalty Case of Mumia 
Abu-Jamal (Common Courage Press, 2003) and more recently of The Case 
for Impeachment (St. Martin’s Press, 2006). His work is available at 
www.thiscantbehappening.net

http://pubrecord.org/law/3809/american-justice-blind-truly/