Attorneys - please put this Scalia quote in context

I was reading this article on Slate about habeas claims and came upon this from Supreme Court justice Antonin Scalia:

“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”

Not being a legal type, I often find it difficult to parse legal arguments. I have a vague idea of Scalia’s textualism, but not being one of the anointed I’m unable to make a factual case against it. The best I can do is say it sounds rather stupid and bullheaded, which is where I am with this quote. It seems like Scalia is saying it would be hypothetically acceptable for a person to be executed for a crime for which he later proved his innocence. But I’m guessing there is more to this - can someone go into more detail and give it some context?

He’s talking about post-conviction procedures, and one thing to note is that at the outset he’s saying “this Court has never held…”. Which is true. It hadn’t ever done exactly that. So on that level, it’s a pretty basic statement. Of course, he’s also arguing (unsuccessfully - he wrote this in dissent and was complaining that the rest of the Court was getting it wrong) that the Court shouldn’t do that.

One thing that complicates it is this idea of “actual innocence,” which as you probably know isn’t the way the justice system usually operates. By and large we don’t deal in proof of innocence; our courts aren’t a mechanism for people to prove that they’re innocent. We either prove them guilty and punish them or we don’t and we don’t. What Scalia was saying there was that there’s no mechanism in the law for somebody who has already been convicted and sentenced to death to say “check this shit out; I was innocent all along” and get their get out of death row free card punched by a federal court because of that.

It’s essentially a statement about the way one court reviews another court’s decisions. Imagine I get accused of killing somebody, so I go to trial in Pennsylvania court. They say shit yeah, he did it, and sentence me to die. I have all kinds of appeal rights, certainly, but what’s important is that my rights to appeal are specifically defined by various statutes. Those laws tell me, and tell the courts I’m appealing to, what I can and can’t complain about and what the courts can and can’t do for me. This is so for obvious reasons - the state wants me dead in the name of Justice, and if I can effectively prolong the execution of my sentence indefinitely by constantly raising new issues and being retried all the time – what about this? OK but what about that?! - then I’m subverting Justice, right? So there are laws, and once I’ve run out of the appellate rights those laws give me, I’m out.

Scalia’s talking about one of those laws. It says “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

What Scalia is saying is that if you’ve been convicted in state court, you have to satisfy the above in order for a federal court to give you any help, because federal courts stepping in and helping is supposed to be an “extraordinary remedy;” we want Justice to be administered efficiently so it can’t be a regular thing or nobody will get anything done. It is possible for you to have been convicted in state court, in a proceeding which didn’t unreasonably apply any established federal law, and also have some evidence available to you which would convince a federal court that in fact, you actually really are innocent, and in that case, he’s saying, the law does not say you get relief, because the law doesn’t say that’s what the federal court is looking for. The federal court, he’s saying, is supposed to check and see if the law is followed. Whether or not you’re “actually innocent” is a separate question based on the introduction of a bunch of facts which were already supposed to have been resolved at trial. He thinks the rest of the Court basically whizzed on the existing federal statutes in order to make up an avenue for relief that suited the case in front of them.

Didn’t his opinion also mention that remedy is available though actions of the Executive branch? So he wasn’t so much saying that you’re completely screwed if the jury got it wrong, just that appellate courts were not the right remedy if the “wrong” verdict was delivered even though all the right laws and procedures were followed.

Not my OP, but those were both great responses. Good read.

Agreed, thank you gents.

One follow-up: I seem to recall a few news items about people who were found guilty of a crime but later shown to be not-guilty through DNA evidence, yet they continued to be incarcerated. Has that actually happened, and did things pan out as described in this scenario? Were their convictions, arrived at through proper due process, eventually changed through some other means such as executive actions or whatnot?

You need to understand two thing. DNA is just another piece of evidence. It has to be taken in consort with other pieces. It’s probative value will depend on the circumstances of the specific case. It could be decisive. It could also be unimportant. It is not on its own a declaration of innocence or guilt. Secondly, an appeal is not a rehearing or the trial all over again. To succeed in an appeal you have to show the Appellate Court ( depending on the exact standard of review and the forum of appeal, first appeals have broader grounds that subsequent ones) that the errors made below individually and or cumulatively are of such a nature that the conviction cannot be safely maintained. So if in your example, the impugned judgement did suffer from an error, the DNA evidence of lack thereof, the conviction could be upheld if it could be safely maintained on it other grounds. A bit if a simplification, but not much.

Great post and one can clearly see why such procedures are in place.

That said the refusal to consider “actual innocence” seems taken too far.

Consider the case of a man in Alaska who was on death row and wanted a DNA test that could exonerate him. When he was convicted the science for the test did not exist. Eventually science could rule with near certainty whether he did it or not.

He offered to pay for the test himself. None of this would push back his date with the electric chair. None of this would cost the state a dime. He only needed to get the evidence the state held. The state refused and, eventually, the Supreme Court agreed.

That I do not undertand:

The opinion of the Supreme Court in that case is quite similar, with much deference to the State level criminal justice system. The majority opinion (which can be found here), feels that the US Constitution does not require the individual States to be forced, by judicial ruling, to test DNA in a post conviction petition. As the Court says in the syllabus:

“There is nothing inadequate about Alaska’s postconviction relief procedures in general or its methods for applying those procedures to persons seeking access to evidence for DNA testing. The State provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence. It also provides for discovery in postconviction proceedings, and has—through judicial decision—specified that such discovery is available to those seeking access to evidence for DNA testing. These procedures are similar to those provided by federal law and the laws of other States, and they satisfy due process.”

So it’s another case where the Court finds that the federal appeal courts are not the place for the decisions of guilt of innocence are to be made and defer to the individual states to set their own laws and rulings for the handling of post conviction relief.

I’m just musing on the alternative - if laws existed that compelled DNA testing on all potentially-exculpatory biological evidence. The science is rapidly advancing, to be sure, but it’s not yet at the CSI stage where results are instant and unambiguous, and such a requirement would drag out the trial process for many defendants, guilty and innocent.

Then you’re asking the appellate court to just do the trial over again… every single time. And specifically, federal appelate courts, not state ones.

Appeals Courts do not, and are not equipped, to weight evidence in that sense. There is no provision or mechanism for investigating, criticising, or defending evidence - and unlike television, there’s always room for some doubt either way.

This is effectively what Scalia was saying. Well, that and “Hard Cases make Bad Law”. I should note that Scalia’s position is probably the more common one and the same SCOTUS will fall back on that more often than not.

I think that taken in context of Scalia’s overall jurisprudence, it shows that morality, fairness and justice that a particular judge does not personally accept have no place, it is about the application of power to accomplish the goals of those with power and the expense of those without. A jurisprudence (theory of how law operates) that justifies a given wrong result, execution of an innocent person for example, is worse than a dictatorship by a nasty dictator: at least that result doesn’t put the litigants through years of emotional hell before delivering its arbitrary result and has the advantage that everyone silently knows that it is tyranny.

Not really. Only if there’s new evidence that wasn’t available to the trial court. And the appellate court doesn’t have to determine the facts, it can just bounce it back to the trial court for a re-do.

I am unmoved by the protest that it might be difficult to actually process evidence that might conclusively demonstrate the innocence of someone who’s been convicted - wrongly, if the new evidence really does establish innocence. “We have to keep you locked up and eventually execute you because even though we have in our possession the means to show conclusively that you didn’t do the crime, it would be expensive.”

How wonderful to know that proposed evidence for further testing comes pre-tagged as “Testing of this evidence will conclusively exculpate the defendant” and “Testing of this evidence will fail conclusively to exculpate the defendant.”

But this being so, why is the testing necessary to begin with?

Of course, evidence does not come so tagged in advance. The states, in administering their criminal justice and correctional systems, need not be held hostage to the conjectures of the incarcerated (who have all the time in the world to think up new proposed evidence for testing) as to what may or may not exonerate them upon further testing and thus must be given unlimited opportunities to propose this or that testing.

A defendant who has been convicted beyond a reasonable doubt after a full and fair trial at which he has been adequately represented by counsel has an exceptionally high bar to meet before he can assert a Constitutional right to reopen the verdict. Merely speculating that some further testing might show him to be not guilty is not sufficient.

How states should handle such occasions is not determined by the Constitution, it is up to the democratically elected political branches. There can be no right to an omniscient justice system, because that is impossible. Despite the fact that our justice system must necessarily be imperfect, it is still permissible to have a functioning system (provided it affords certain minimum guarantees). The question of how to balance the efficiency and finality of criminal trials with a desire that incorrect convictions be minimized is the province of the legislative and executive branches in their policy-making functions.

The idea is that we have a procedure that gives everyone their day in court.
Actual innocence is rarely provable, what you usually have is exculpatory evidence that might have yielded a different verdict if presented at trial. We can’t relitigate every case if the defendant comes up with new evidence after trial. This would incentivize guilty defendents to withhold evidence and release it slowly over time to extend the litigation period.

I don’t understand Alaska’s refusal to cooperate with the death row inmate either. It seems that you can make special rules for people on death row if it will not push back their execution date and if you are not bound to reevaulate the case based on any new evidence discovered.

Is the process fair and evenly applied?
No judicial system can survive a situation where the litigants can continue to relitigate until they get the result they desire. We already have precautions built into the system to try and protect the rights of the accused in criminal cases, now you are suggesting that they get multiple days in court. Of course there will be some corner cases that require special consideration and we have given the governors of each state and the president of the united States the ability to commute a sentence or pardon a convict.

Putting aside what might be a swell thing to do for the state of Alaska to do, to whom does the authority to fashion policies for deciding proposal to do further scientific testing (which had not existed at the time of the trial) of evidence?

What if Alaska said, “We destroy all physical evidence one year after the last direct appeal has been decided?” Constitutional violation? What if 15 years later, science comes up with new tests that could have been performed on that now-destroyed evidence?

Our justice system seems to lean heavily towards innocence, but only up until a conviction. After, not so much.

Maybe it’s time to re-think the process, at least in cases where:

  1. The penalty is extreme, i.e., death or life imprisonment

  2. A scientific test, not available at the trial, is now possible, and * is definitive,* i.e., may be strong and incontrovertible, sufficient to negate all other evidence.

I doubt if #2 was ever considered in 1776. Maybe it’s time to change that. It certainly does not speak well of our justice system as things are now; instead of “blind justice,” it should be called “blind sadism.”

Is anyone else troubled by the dismissiveness apparent in the quotation marks Scalia uses in " ‘actually’ innocent"?

Doesn’t that indicate that the context the OP is seeking is that Scalia does not consider his responsibility to be in any way dispensing and upholding justice?

I think what he means is that “actually innocent” has no legal meaning. The justice system can render a verdict of “not guilty.” To the extent that “not guilty” might not be in accord with “actually innocent,” there are no legal standards or procedures to bridge that gap.

No innocent person can avoid execution if they are not allowed to offer exculpatory evidence.

No judicial system that as a principle executes the innocent deserves to survive.

Our particular judicial system allows the rich and powerful to relitigate and relegislate for many decades. Only the very clever and charismatic poor incarcerated can accomplish the same. The rest languish and die. Sooner or later, depending on jurisdiction.

If he meant “not guilty”, he could have *said *“not guilty”. Instead, he had to add a sneer about the very idea of *being * “actually” innocent.