Justices lost on death penalty



According to a strict constructionist view of the Constitution,
innocence is not enough to stop the government from executing you.
All that matters is that you had a legally "fair trial."

If you prove your innocence after that trial ends in a death
sentence, too bad. Back the hearse up to the prison. Upholding the
supposed integrity of the system is more important than your life,
your innocence, or even the knowledge that the person who committed
the crime is on the loose and probably committing others.

That's the argument U.S. Supreme Court Justices Antonin Scalia and
Clarence Thomas recently made in a death penalty case.

"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," Scalia wrote.

Law professor Alan Dershowitz put Scalia and Thomas' logic into
simpler terms: "If a defendant were convicted ... of murdering his
wife and then came to the Supreme Court with his very much alive wife
at his side ... these two justices would tell him, in effect: 'Look,
your wife may be alive as a matter of fact, but as a matter of
constitutional law, she's dead, and as for you, Mr. Innocent
Defendant, you're dead, too, since there is no constitutional right
not to be executed merely because you're innocent.'"
From a legal standpoint, Scalia and Thomas don't seem to believe a
person can actually be innocent, only "guilty" or "not guilty,"
because that's the only thing the system is designed to determine.
That's an incredible view of our justice system, one that deserves
much more debate.
And to think, many spent weeks arguing against Sonia Sotomayor
because she "hopes" a "wise Latina" can make better judgments on
certain issues than white men.
Let a Puerto Rican woman show pride in her heritage, and critics
unleash a Category 4 hurricane of complaints, arguing Democracy
itself is under attack.
Let long-serving white and black male Supreme Court justices suggest
the constitution provides no protection for "actually innocent"
people, and the resulting outrage doesn't even amount to a tropical
depression.
Fortunately for Troy Davis, who was convicted 20 years ago of
murdering off-duty police officer Mark MacPhail, the other justices
displayed common sense. They forced a lower court to re-consider the
evidence.
No physical evidence linked Davis to the murder. More than two dozen
former prosecutors and judges said Davis should get a new hearing.
Seven of the nine eyewitnesses used to convict him have recanted,
saying they were pressured to name Davis.
And according to a mountain of research, eyewitness testimony is
notoriously inaccurate.
I can't tell you if Davis is guilty. I can tell you it is beyond
absurd to believe that even if he proves his innocence, he should
still take a trip to Georgia's death chamber.
But that's one of the problems with what we call the justice system.
The outcomes aren't always about justice.
Even in South Carolina, if you are innocent - meaning you didn't do
it - but get stuck with a lawyer who isn't very good, the chances are
almost zero you'll win an appeal.
Why? Because appeals aren't about making sure justice prevails. It's
often about making sure all the legal 't's' have been crossed and
'i's' have been dotted.
If your lawyer didn't make the right objections during your initial
trial - those that could later help prove your innocence or show
things weren't fair - the appeals court may not even consider it.
The legal logic says we shouldn't try cases into perpetuity, that it
would put too much chaos in the system, that there has to be a point
where cases end.
According to Scalia and Thomas, the Constitution doesn't protect
innocent men from death at the hands of the government, because the
system the government created isn't designed to detect innocence.
Good thing they didn't prevail, for if they had, Davis wouldn't have
been the only casualty of such thinking.
They would have effectively put a needle in the arm of justice, too.

Bailey's "Proud. Black. Southern. (But I Still Don't Eat Watermelon
in Front of White People)" can be purchased at The Sun News,
TheSunNews.com or Proud BlackSoutherner. com. He can be reached at
ibailey@thesun news.com or 626-0357.

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