Since he didn’t mean “not guilty,” it would have not made sense for him to say “not guilty.” He is distinguishing between the legal concept of guilt and the idea that beyond the legal determination of guilt the legal system is being burdened with the application of the idea of “actual innocence.” From a legal standpoint, the defendant was guilty, period, because due process had resulted in a verdict of guilt.
The point is that he’s contemptuously dismissing the very *relevance *of actual innocence. ISTM that should bother people a little more than it apparently does.
The “contempt” might just be something you’re adding yourself.
It’s not a novel position on Scalia’s part that “actual innocence” as a concept might be meaningless in the law.
I’m kinda curious how “actual innocence” would be applied. Are we expecting that at any point in the process, the presiding judge can say “Y’know, based on this latest piece of evidence, the defendant is obviously actually innocent. Case dismissed, you’re free to go.”
It’s more than that. I have heard the term “Actual Innocence” before, in a very similar context. “Actual Innocence” is not a valid legal defense. it is not a reason for a retrial, or a reason for anything at the appelate level.
That is, you can plead Not Guilty, and show that the State does not have evidence to convict. But you have no obligation to show yourself as innocent. Anything you do to show yourself as innocent can be picked apart by the prosecutors, so most defendants choose not to do so. At best, it’s simply one option, and if you had clear evidence to that fact it’s unlikely they would ever have prosecuted you for the crime in quesiton. If you can prove you didn’t do it, you generally don’t have to go to court because the prosecution knows it and knows they’ll be defeated, slammed by the judge for wasting his time, and possibly publicly mocked. If they conceal evidence - not proof, just evidence - that *could hypothetically be exculpatory, they’ve committed a serious offense and are likely to be disbarred.
By the same token, Actual Innocence isn’t a defense at the Appellate level. You cannot say (or at least, will not be listened to) that you didn’t do it. You can say that there was a systematic failure in your trial or perhaps that some law or rule was broken. At best, you can say that new evidence has arisen which you had no fair way to introduce at the time which is reasonably likely to change the verdict - and a judge will hear this and consider. And this is precisely what Scalia is saying: the convicted citizen has had a fair day in court; he may be innocent, in which case the jury screwed up. But it is not the place for judges to decide that. Juries decide that. The convicted citizen does not get do-overs unless the system glitched along the way, and judges have to make decisions on that - but may never substitute their judgement for the actual legal verdict.
It mostly puts me in mind of potential abuses: “You fine white gentlemen are obviously actually innocent of lynching that shiftless negro. Case dismissed, you’re free to go.”
As I recall when I first looked into Scalia quotes on this for alt.fan.cecil-adams a few years back, the case in question was something along the lines of the defendant wanting a retrial because another prisoner claimed that his former (and now deceased) cellmate told him that he was the one who committed the murder.
If we start re-trying people based on that kind of stuff, I’m not sure anyone would ever get convicted (or at least it would make the justice divide between the haves and the have nots even worse)
I think there was also mention somewhere by Scalia that a system like this could result in defenses actively trying to hide/withhold evidence. That is, they put in just enough evidence to do what they think will be enough for a not guilty verdict, and if they’re wrong, well, hey, here’s some more evidence, let’s try again and see if they get a better jury.
While it’s not untrue that sometimes the defense relies on the inability of the prosecution to prove up the elements beyond reasonable doubt, it is untrue that “actual innocence” is not a legal defense. It is, to the contrary, the most frequently used defense. Your belief that prosecutors don’t bring cases to trial unless they believe that they can prove the case beyond reasonable doubt is not incorrect, but that doesn’t mean that the jury will see it the same way.
So the prosecution makes its case. The defense argues “Defendant wasn’t there/didn’t do it/etc.” That’s a defense of actual innocence, and if the prosecution cannot rebut it beyond reasonable doubt, it is a successful defense.
This is also untrue. “Actual innocence” is the standard used when a convicted defendant seeks to avoid a procedural bar to habeas relief (as, for instance, the one-year time limit for habeas relief under AEDPA). Schulp v. Delo, 513 U.S. 298 (1995). That is, actual innocence can remedy other fatal procedural defects. Here, actual innocence is a “gateway” — reopening the procedurally-closed courthouse door to allow the defendant to raise his substantive Constitutional grounds for post-conviction habeas relief.
In another case, Herrera v. Collins, 506 U.S. 390 (1993), the Court held that freestanding claims of actual innocence (that is, where the defendant alleges no Constitutional defect in his trial, as a Schulp-style habeas petition does) are not sufficient alone to undo the trial. This is for the reasons outlined above. Putatively, the defendant would have raised his actual innocence at trial (and this is why cooling your jets instead of raising that defense, as you recommend above, is not always a bright idea), and nevertheless, the finder of fact satisfied itself beyond reasonable doubt that the alibi was fully rebutted.
At least Rehnquist and four others so held. But one of those four others was O’Connor, J., who also filed a concurrence that “the execution of a legally and factually innocent person would be a constitutionally intolerable event.” I’ll let Wiki take it from here:
Finally, there is a difference between trial claims of actual innocence and post-conviction claims. At trial, once the defendant has raised the issue of actual innocence and backed it up with some quantum of evidentiary support, the prosecution must rebut the claim and evidence beyond a reasonable doubt.
However, at the appellate level, the burden lies on the convicted defendant, who must show actual innocence by clear and convincing evidence. This is more than a preponderance, but less than beyond reasonable doubt. In other words, the finder of fact must be left with a firm (if not completely certain) conviction that the defendant is actually innocent.
Lastly, actual innocence is shown by evidence that unequivocally negates an element of the crime. Evidence that merely raises doubts would not suffice (even though these unrebutted doubts at trial would be enough to bar a guilty verdict).
Maybe, but Scalia is skilled enough in the use of language to have had some conscious reason for putting “actual” (but not “innocence”) in quotes, rather than simply using it as the appropriate term of art.
Perhaps I have not been clear enough on distinguishing between the law and justice. They’re not synonyms. The law is merely a tool used to establish justice; it is not the be-all and end-all in itself. Yet Scalia does worse than so many other legal types who do not recognize that concept - he apparently *does *recognize it; he simply dismisses it. That goes beyond merely ignorant, to “actual” evilmindedness.
Boy, what a reach.
And part of the point is that actual innocence doesn’t really exist as a concept in the law. So it can’t be used as a term of art.
You seem to be suggesting that Scia actually wants innocent people to be put to death. That’s a stretch to base if on the use of quotation marks.
[wuoye]
Perhaps I have not been clear enough on distinguishing between the law and justice. They’re not synonyms. The law is merely a tool used to establish justice; it is not the be-all and end-all in itself. Yet Scalia does worse than so many other legal types who do not recognize that concept - he apparently *does *recognize it; he simply dismisses it. That goes beyond merely ignorant, to “actual” evilmindedness.
[/QUOTE]
Application of law is all we have as a proxy for justice. Certainly a court of law is limited by it. “Forget the law; I’m doing justice” is not a plausible stance for a court to take.
To be fair, it sounded cooler when Tommy Lee Jones explained it to Harrison Ford.
I’m concerned that he doesn’t mind all that much if they are, since the law, as distinct from justice, is okay with it as he reads it. That assessment isn’t based on a punctuation mark, but on his entire corpus of work.
Really? Not concepts of morality, ethics, religion, basically all of our understanding of millenia of Western civilization, Eastern too? Nothing of the sort? All we have is a set of books and procedures, without which we’re totally lost?
Tell me, what happens when those written words fail to cover an issue completely, or are in conflict, or are unclear, when your judgment is required? What do you fall back on then?
The law is an ass, as you may have heard.
That’s frankly a shocking thing to read, not just disappointing.
To save time, I plan in the future to simply endorse everything Kimmy_Gibbler writes.
Ideally, your system of law already takes these into account, to the extent that it is possible.
You don’t think the law accounts for all these things?
What the law does not, and probably cannot, account for is the idea that at some point you can discard what we as a society have determined is the right and fair way to handle matters when all of a sudden someone is struck with the notion that he knows what “actually” is the truth.
Actually it’s not. Our system of justice is based upon due process and other rights. What happens when you are on the other side of the coin and a judge suddenly thinks that he knows what the “real truth” is and throws the law out in a way that it lands on your head?
You mean when Ford said “I didn’t kill my wife” and Jones explained “I don’t care” ? 
In practice, it doesn’t necessarily. As in *most *cases that reach the Supremes. We are, tragically, unable to live in an ideal world at all times.
No, obviously not. Apparently you do, and it might be interesting to learn how you achieved such absolute faith.
You’re dismissing the concept of " ‘actual’ innocence" as relevant just as Scalia is, then.
That’s what we have the appeals system for. The system that includes the case under discussion, as you know.
Kimmy_Gibbler already wrote about this above, but the Supreme Court interprets the law, they don’t create it. Reading the law as it is is their job. Changes to the law must come from the legislature.
In the movies, people tossing out the rules and listening to their gut are always in the right. In the real world, that approach gets you things like the Rampart scandal, the Scottsboro Boys case, the Star Chamber, and COINTELPRO. The law must be followed, and if it’s not producing the results we want, the law can be changed. What it can’t be, to have a stable society under the rule of law, is ignored.
Almost every case they get is in the areas where laws are unclear, inadequate, or in conflict. “Reading the law” gets them nowhere, even though it is common for those offering result-driven opinions claim that’s all they’re doing. Waiting for the legislature, as you say should be required, means delaying and denying justice to the litigants. No, what the Court does, with almost every ruling, is indeed to *create *law. Claiming they that they don’t, or shouldn’t, is simply foolish. It doesn’t work that way, and never has, because it can’t.
Nobody said anything about ignoring it. But we aren’t enslaved by it, or by anyone’s preferred understandings of it, either, especially in such cases as when slavishly following it means putting " ‘actually’ innocent" people to death.
So why aren’t you troubled by that? Or are you?
Scalia seems to be saying that this isn’t an area where the law is unclear, or in conflict. Thus, there’s no creating law to be done here.
Scalia was writing a dissent, here, so his view didn’t carry the day.
As a textualist, he holds that the law ought to be followed as closely as written as possible, and that when it’s found wanting, it’s the law that should change, rather than the prevailing interpretation of it. That’s a perfectly reasonable view. In this case, the law (the AEDPA) imposed a limit of one year on petitions of habeas corpus asserting new evidence, starting from the day it could have discovered through the exercise of due diligence.
If that limit is thought to be too onerous for certain cases, either the statute can be changed, or the court can decide that certain cases aren’t subject to the limit. The former course is preferable, as the statutes come from elected representatives rather than appointed judges, and the law in practice should match the law as written as closely as possible.
We definitely don’t have to pretend that Scalia’s or anyone’s take on the law isn’t informed by a particular worldview. The fact that he was writing in dissent means that none of us is going to be able to rely on common understanding and call it a day. And Elvis’ frustration is an understandable one. If we imagine the scenario where a Troy Davis has literally incontrovertible proof of his innocence, and is attempting to introduce it, and we imagine that Scalia’s view prevails in that case such that Troy Davis can’t put on his evidence and judgment on his appeal remains final, then that’s a very neat and fairly obvious example of a fucking nightmare scenario where we are collectively turning a blind eye to an innocent-to-a-certainty citizen and costing him his life as a result.
We don’t want that to happen; Elvis can imagine that it might and so he thinks that we must not be doing very much to prevent it from happening. The question is, how do we map our desire to avoid that to the real world, where we have to deal with probabilities and burdens of proof and reasonable minds differing?
It certainly exists. It’s a very important concept in the law. It is, after all, the platonic truth we’re trying to get at with this whole process; again, the question is how do we set up a system of rules that governs real human beings such that it’s most likely that we’ll come closest to that truth most often?
When we talk about actual innocence - and look, nobody’s ever going to get me to defend with any sincerity the position that Justice Scalia said something that wasn’t infused with sneering contempt - it’s worth keeping in mind that in practice, it’s a chimera. We don’t know. We never know. Every rule we put in place has to be viable in a world where no matter how much importance we place on truth (and anyone who doesn’t think the criminal justice system on a macro level isn’t worried about that is encouraged to go ahead and draft up a system that will be more obsessed with it), 0% of the time will we know what the right answer was. When a convicted person comes before the court with “proof” of his “actual innocence” - now I’m doing it - we are obligated just by the fact of finite time and resources to ask ourselves what kind of numbers we’re dealing with here. Is he telling us that there’s a slight chance that if we let him present his case, he’ll convince us to accept as true a piece of evidence that will eliminate him as a suspect with 85% certainty? 95%? 99? What level of certainty is uncertain enough for us to say no to him and the thousands of others who have the same arguments to present?
The point is, there has to be, there’s no getting around, an extremely complicated process which consists of several phases of introducing and evaluating evidence and arguments, and which separates these phases by a bunch of philosophical airlocks, of sorts. A trial by jury is the ultimate determinant of guilt or innocence… er, unless this or that weird thing happens. If that happens, then you go to a different judge, but you don’t get a whole new trial, obviously. Unless! Wait, so sometimes I guess you do get another trial. But not usually. And so on. What we’re looking at here, in the OP’s case, is a situation where we’ve run through that entire course already. We’re at the end, and every little T and I have been crossed and dotted and the guy is still guilty in the eyes of the law. And the Supreme Court is disagreeing among itself about whether the five hundred and thirtieth of Troy Davis’ five hundred and thirty arguments why he shouldn’t be executed - which he’s raising at a point where, so far, the law has said “OK, you’re out of bites at the apple now” – rises to such a level that all of those procedural niceties should be deemed to have been insufficient process, and he should be given another try to make his case.
It’s not a question of disregarding actual innocence. It’s a question of where we draw the line, given that we’re literally never going to disprove the possibility of actual innocence, and Scalia didn’t agree with the rest about which side of the line they were on. Whether his moral character should be called into question as a result or not, at least let’s not be reductive about it. There’s a difference between admitting of a possibility and expressing a preference.